01993345
02-06-2001
Valerie Richards, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Valerie Richards v. United States Postal Service
01993345
February 6, 2001
.
Valerie Richards,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993345
Agency No. 4-K-220-0111-98
DECISION
Complainant filed an appeal with this Commission from an agency decision
dismissing her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. 791 et seq.
On June 30, 1998, complainant filed an EEO complaint wherein she
claimed that she was discriminated against on the bases of her race
(unspecified), sex (female), disability (pregnancy), and in reprisal
for her previous EEO activity under Title VII when:
1. Management committed a �misuse� of her annual leave.
2. Complainant was involuntarily reassigned.
3. Complainant's donated leave was improperly denied.
4. Complainant was charged as being absent without leave (AWOL).
5. Complainant was denied six months of additional Family Medical Leave.
By letter dated August 25, 1998, the agency requested that complainant
clarify when each specific incident occurred and what course of action she
took with each incident. The letter indicated that the complaint would
be dismissed if complainant failed to provide the requested information
within fifteen days of her receipt of the letter. Complainant received
the agency's request for information on September 16, 1998.
In its decision dated January 22, 1999, the agency dismissed the
complaint on the grounds of failure to cooperate. The agency stated
that complainant failed to respond to its request for clarification
of the complaint. Additionally, the agency dismissed the purview of
disability on the grounds of failure to state a claim. The agency
noted that employment decisions based on pregnancy are a form of sex
discrimination rather than disability discrimination.
Initially, we find that the agency properly dismissed the basis of
disability. Complainant claimed that pregnancy was her disability.
Pregnancy does not constitute a disability. See Jessica Stewart v. United
States Postal Service, EEOC Request No. 05960071 (December 18, 1996).
The agency appropriately grouped pregnancy with the basis of sex.
Accordingly, the agency's decision to dismiss the basis of disability
from complainant's complaint for failure to state a claim was proper.
Pursuant to 29 C.F.R. � 1614.107(a)(7), we find that the agency's
dismissal of claims 1 and 3 on the grounds of failure to cooperate
was proper. With regard to claim 1, we find that the charge claiming
agency misuse of complainant's annual leave lacks clarity in terms
of when this incident(s) occurred and what specific misuse occurred.
With regard to claim 3, it is unclear from the record when complainant's
donated leave was denied. Therefore, there is insufficient information
in the record to permit an adjudication of claims 1 and 3.
With regard to claims 2, 4, and 5, we find that the agency failed to
show why complainant's response was necessary for further processing of
those claims. We note that complainant's complaint, along with the EEO
Counselor's Report, and other documentation in the record sufficiently
addressed the incidents of alleged discrimination referred to as claims
2, 4, and 5, with references to the responsible agency official by
name, the bases on which she alleged discrimination, the dates of the
alleged incidents, and the corrective action sought. The reassignment
referenced in claim 2 occurred in February 1997. With regard to claim 4,
complainant claimed that on April 30, 1998, she was improperly charged
as being AWOL. As for claim 5, the record indicates that complainant
claimed that in April 1998, she was denied six additional months of
family medical leave.
Therefore, we find that the agency's dismissal of claims 1 and 3 is
AFFIRMED. The agency's dismissal of the basis of disability from the
entire complaint is also AFFIRMED. The agency's dismissal of claims 2, 4,
and 5 on the grounds of failure to cooperate was improper and is REVERSED.
Claims 2, 4, and 5 are hereby REMANDED pursuant to the Order set forth
below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. 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 (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0900)
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), 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 19848,
Washington, D.C. 20036. 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 (T0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 6, 2001
__________________
Date