Yolanda E. Ambrose, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 17, 2005
01a50924 (E.E.O.C. Mar. 17, 2005)

01a50924

03-17-2005

Yolanda E. Ambrose, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Yolanda E. Ambrose v. United States Postal Service

01A50924

March 17, 2005

.

Yolanda E. Ambrose,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A50924

Agency No. 4-H-330-0242-04

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated September 30, 2004, dismissing her complaint of unlawful

employment discrimination. According to the agency's decision,

complainant alleged that she was subjected to discrimination on the

bases of race (African-American) and sex (female) when, on May 17, 2004,

an unspecified event occurred.

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1),

for failure to state a claim. Specifically, the agency stated that

complainant abandoned all of the issues in her complaint that were

initially raised on her request for counseling when she did not re-allege

these issues on her formal complaint. Moreover, the agency commented that

even the allegation referenced in complainant's pre-complaint does not

meet the criteria for stating a claim. The agency noted that a review

of the Dispute Resolution Specialist report discloses that complainant

alleged that mail was returned to her unopened.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. 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).

A review of the record reveals that, on September 4, 2004, complainant

filed a formal complaint and noted, "See Attached," in number 16, the

section where complainant was asked to explain the specific action(s) or

situation(s) that resulted in complainant alleging that she believed that

she was discriminated against (or treated differently than other employees

or applicants) because of her race, color, religion, sex, age (40+),

national origin or disability. However, there is no attachment, which

is clearly identified, in the record. Additionally, the agency has not

addressed whether there is an attachment and there is no indication that

the agency requested clarification from complainant as to the attachment.

Although the agency has not addressed whether there is an attachment,

we find that it is clear in the EEO Resolution Specialist's (DSR)

Inquiry Report and complainant's statement on appeal that complainant

alleges that she was subjected to discrimination on the bases of race

(African-American) and sex (female) when, on May 17, 2004, she was not

awarded the position of Manager of Customer Service at the Snapper Creek

Branch Post Office. Complainant alleged that the mail which was returned

to her unopened was her request to be placed in the position of Manager

of Customer Service at the Snapper Creek Branch Post Office.

Additionally, we find that the agency erred in dismissing complainant's

claim for failure to state a claim because complainant has alleged a harm

to a term, condition or privilege of her employment. The harm complainant

identified, i.e., that complainant was not awarded the position of Manager

of Customer Service at the Snapper Creek Branch Post Office, relates

directly to complainant's employment with the agency. Consequently, we

find that complainant was aggrieved by the nonselection at issue and that

the agency improperly dismissed the claim for failure to state a claim.

Accordingly, the agency's decision to dismiss the complaint is REVERSED,

and the complaint, as redefined in this decision, is REMANDED to the

agency for further processing in accordance with the ORDER herein.

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 (K0501)

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)

(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 (M0701)

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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 filed your appeal with the

Commission. 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. 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

March 17, 2005

__________________

Date