ANN L. MCALHANEY, APPELLANT,
v.
MARVIN T. RUNYON, JR., POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.

Request No. 
05940949
Appeal No. 01942521
Agency No. 4-H-330-2787-93

July 07, 1995

DENIAL OF REQUEST FOR RECONSIDERATION

INTRODUCTION

On August 29, 1994, the Equal Employment Opportunity Commission (hereinafter referred to as a the Commission or EEOC) received a timely request for reconsideration from the United States Postal Service (hereinafter referred to as the agency) to reconsider the decision in Ann L. McAlhaney v. Marvin T. Runyon, Postmaster General, United States Postal Service, EEOC Appeal No. 01942521 (August 10, 1994). EEOC regulations provide that the Commissioners may, in their discretion, reconsider any previous decision. 29 C.F.R. § 1614.407(a). The party requesting reconsideration must submit written argument or evidence that tends to establish one or more of the criteria prescribed by 29 C.F.R. §1614.407(c). The agency bases its request on 29 C.F.R. § 1614.407(c)(2) (the previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy). For the reasons set forth herein, the agency's request is denied.

ISSUE PRESENTED

Whether the previous decision properly determined that the agency's dismissal of appellant's complaint for failure to state a claim was improper.

BACKGROUND

The record indicates that appellant filed a formal EEO complaint dated November 12, 1993, alleging that she was subjected to discrimination based on sex (female) and reprisal because of an official discussion she allegedly received on August 11, 1993 regarding a parking violation on the agency premises. Appellant maintained that while on official agency business she was authorized to park in the space in question. Appellant also stated in her complaint that other employees have parked in those spaces, yet she was the only one who was continually singled out. The previous decision held that the agency improperly found that appellant did not state a claim. According to the previous decision, the agency erred in finding that appellant was not aggrieved since appellant suffered no measurable personal harm as a result of the discussion. The previous decision noted that the record contained a memorandum issued by the Plant Manager, dated August 3, 1994, regarding appellant's alleged unauthorized parking in a customer designated space. Attached to that memorandum, which was issued to the District Manager, is a copy of an incident report describing the parking violation and the reporting officer's comments to appellant when a courtesy ticket was issued. The previous decision held that appellant stated a claim because she received a written warning concerning her alleged infraction and the file indicated that a copy of the report regarding appellant's alleged infraction was maintained in agency files. The previous decision also concluded that appellant stated a claim because her complaint included a claim that this alleged action was part of a continuing pattern of harassment. The previous decision stated that as such appellant had not just alleged a single isolated incident unaccompanied by concrete action.

In its request for reconsideration, the agency argues that the previous decision contained an erroneous interpretation of material facts in that there was no letter issued to appellant regarding her unauthorized parking in a customer designated space. The agency contends that appellant did not allege that she received a letter, only an official oral job discussion. The agency argues that the only letter in the file is the August 3, 1993 memorandum from the Plant Manager to the District Manager transmitting the Incident Report regarding appellant's unauthorized parking. According to the agency, there is no record of the discussion in appellant's personnel file or any other agency system of records. While appellant was issued a courtesy warning ticket, it was not mentioned in her complaint or contained in any of her official records. The agency notes that while appellant attended service talks on March 16 and August 16, 1993 on the subject of parking restrictions, this was a routine practice and is required of all employees. The agency contends that there is no indication in the record that appellant was claiming the job discussion was part of a continuing pattern of discrimination.

Appellant has not provided a response to the agency's request.

ANALYSIS AND FINDINGS

After a careful review of the record, the Commission finds that the agency's request for reconsideration does not meet the criterion of 29 C.F.R. § 1614.407(c)(2). Accordingly, it is the decision of the Commission to deny its request.

Based on a review of the record, the Commission finds that the previous decision properly determined that the agency's dismissal of appellant's complaint was improper because the record revealed that appellant was aggrieved. The Commission concludes that the previous decision properly noted that the August 3, 1993 memorandum recorded that appellant received a warning concerning her alleged infraction and the file indicated that a record still exists with the agency regarding this infraction. The incident report sent to the District Manager indicated that appellant had been warned about parking on three specific occasions and on numerous other occasions by that officer about parking. The Section-by-Section analysis of 29 C.F.R. §1614.107(e) at 57 Fed. Reg. 12643 (April 10, 1992) cited by the agency expresses the Commission's intent to require this provision to enable dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person. While the handwritten document was not a letter of warning, it was a record of that particular incident and previous similar incidents involving appellant that was made a part of the agency's records and evidently had not been purged. Thus, since a record existed of appellant's alleged offense, she was affected by an agency action and her complaint stated a claim.

Despite the agency's argument in its request that appellant did not allege harassment, the previous decision correctly identified appellant's statement in her complaint that she was continually singled out for discipline as an allegation of harassment, and determined that such an allegation stated a claim. The Commission also stated in the Section-by-Section analysis of 29 C.F.R. §1614.107(e) that "if the individual alleges, however, that the preliminary step was taken for the purpose of harassing the individual for a prohibited reason, the complaint cannot be dismissed under this section because it has already affected the employee."Id. at 12643. Thus, the Commission finds that the previous decision appropriately remanded the allegation.

CONCLUSION

Thus, after a review of the agency's request to reconsider, the previous decision, and the entire record, the Commission finds that the agency's request fails to meet any of the criteria of 29 C.F.R. §1614.407(c), and it is the decision of the Commission to deny it's request. The decision in EEOC Appeal No. 01942521 remains the Commission's final decision. The agency is directed to comply with the Commission's order set forth below. There is no further right of administrative appeal on a decision of the Commission on this Request to Reconsider.

ORDER (E1092)

The agency is ORDERED to process the remanded allegation in accordance with 29 C.F.R. §1614.108. The agency shall acknowledge to the appellant that it has received the remanded allegations within thirty (30) calendar days of the date this decision becomes final. The agency shall issue to appellant a copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without a hearing, the agency shall issue a final decision within sixty (60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgement to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503(g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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 appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. §1614.410.

STATEMENT OF RIGHTS - ON REQUEST FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092)

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:

Frances M. Hart
Executive Officer
Executive Secretariat