0120114097
02-09-2012
Tonia Davis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Tonia Davis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120114097
Agency No. 4H300015811
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 1, 2011, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Clerk at the Agency’s facility in Athens, Georgia.
On June 28, 2011, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(African-American), sex (female), and reprisal for prior protected EEO
activity when:
1. on March 2, 2011, she was referred to EAP;
2. beginning on an unspecified date, other employees have worked
Complainant’s bid assignment while Complainant has been given
assignments outside her bid; and
3. on March 30, 2011, when Complainant requested help with a lifter,
she was told
that she should not be working at the post office if she could not work
the Gaylord boxes.
The record further indicates that during the informal stage, Complainant
raised two additional allegations regarding investigative interviews held
on January 23 and February 28, 2011. However, the record indicates that
Complainant did not include those claims in her June 28, 2011 complaint
filed with the Agency. Finally, the record indicates that Complainant
also raised issues concerning the alleged breach of a March 17, 2010
settlement agreement entered into by the parties.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim. The instant appeal
followed.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. §§
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). When the complainant does not
allege he or she is aggrieved within the meaning of the regulations,
the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).
With regard to claims 1 and 3, we find that Complainant has failed to
allege that she was adversely affected concerning the terms and conditions
of her employment by the alleged Agency conduct described. Moreover,
the Commission finds that claims 1 and 3, even if proven to be true
and viewed in a light most favorable to Complainant, would not indicate
that Complainant has been subjected to harassment that was sufficiently
severe or pervasive to alter the conditions of employment. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). Finally, the alleged action was not of a type reasonably likely
to deter Complainant or others from engaging in protected activity.
Accordingly, the Agency's final decision dismissing claims 1 and 3 of
the instant complaint is affirmed.
In its final decision, the Agency also found that claim 2 failed to state
a claim. In claim 2, Complainant alleges that on an ongoing basis,
she has been given assignments outside her bid, while other employees
have been assigned to work in her bid area. Upon review, we find that
claim 2 states a claim since Complainant was alleging that she was treated
differently than similarly situated employees outside her protected groups
on a continuing basis concerning her work assignments. Accordingly,
the Agency’s final decision dismissing claim 2 for failure to state
a claim is reversed. Claim 2, therefore, is remanded to the Agency.
We note here that in its final decision, the Agency further indicates
that during the informal states of the instant matter, Complainant raised
additional allegations concerning investigative interviews on January 23
and February 28, 2011, but failed to include them in her June 28, 2011
formal complaint. The Commission has long held that where a complainant
raises a matter at counseling but later does not include that issue in
the formal complaint, she cannot resurrect it later during processing
or file another complaint concerning the abandoned claim. See Robinson
v. Peace Corps., EEOC Request No. 05940710 (May 2, 1995); Small v. Post
Master General, EEOC Request No. 05980289 (July 16, 1999).
Finally, we note that Complainant also raised allegations regarding the
breach of a March 17, 2010 settlement agreement between the parties.
EEOC Regulation 29 C.F.R. § 1614.504(a) provides that if the complainant
believes that the agency has failed to comply with the terms of a
settlement agreement or decision, the complainant shall notify the EEO
Director, in writing, of the alleged noncompliance within 30 days of when
the complainant knew or should have known of the alleged noncompliance.
To the extent that Complainant claims the breach of a March 17, 2010
settlement agreement between the parties, Complainant is advised to
contact the EEO Director in accordance with EEOC Regulation 29 C.F.R. §
1614.504(a).
Accordingly, the Agency’s dismissal of claims 1 and 3 is AFFIRMED.
The Agency’s dismissal of claim 2 is REVERSED and REMANDED to the
Agency for further processing in accordance with this decision and the
Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (Claim 2)
in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall
acknowledge to the Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision becomes final.
The Agency shall issue to Complainant a copy of the investigative file
and also shall notify Complainant of the appropriate rights within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the Complainant requests a final decision without a hearing, the
Agency shall issue a final decision within sixty (60) days of receipt
of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the
Agency, or your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. If you file a civil action,
you must name as the defendant in the complaint the person who is the
official Agency head or department head, identifying that person by his
or her full name and official title. Failure to do so may result in
the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility
or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 9, 2012
__________________
Date
2
0120114097
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114097