Andrzej J. Rafalski, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Area) Agency.

Equal Employment Opportunity CommissionNov 5, 1999
05990164 (E.E.O.C. Nov. 5, 1999)

05990164

11-05-1999

Andrzej J. Rafalski, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Area) Agency.


Andrzej J. Rafalski, )

Appellant, )

) Request No. 05990164

v. ) Appeal No. 01980610

) Agency No. 1-K-221-0158-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Allegheny/Mid-Atlantic Area) )

Agency. )

)

GRANT OF REQUEST TO RECONSIDER

On November 16, 1998, appellant timely initiated a request to the Equal

Employment Opportunity Commission (the Commission) to reconsider the

decision in Andrzej J. Rafalski v. United States Postal Service, EEOC

Appeal No. 01980610 (October 21, 1998). EEOC regulations provide that the

Commissioners may, in their discretion, reconsider any previous Commission

decision. 29 C.F.R. � 1614.407(a). The party requesting reconsideration

must submit written argument or evidence which tends to establish one

or more of the following three criteria: new and material evidence is

available that was not readily available when the previous decision

was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved

an erroneous interpretation of law or regulation, or material fact,

or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);

and the decision is of such exceptional nature as to have substantial

precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons

set forth herein, appellant's request is GRANTED.

The issue presented herein is whether the previous decision properly

affirmed in part and reversed in part the final agency decision (FAD).

The FAD partially dismissed appellant's complaint, which alleged

discrimination based on his national origin (Polish), age (DOB 12/11/49),

physical disability (on-the-job back injury), and in reprisal for

prior EEO activity, in violation of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. �2000e, et seq., the Age Discrimination

in Employment Act of 1967, as amended, 29 U.S.C. �621, et seq., and

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791, et seq.

Specifically, the complaint alleged:

(1) On June 11, 1997, appellant became aware that a file containing 12

folders of confidential information concerning him was left on a table

unsecured in the supervisor's office while the supervisor was on leave;

(2) On several occasions appellant's payroll check was delivered on

Friday, and once on a Saturday, rather than on Thursday;

(3) On July 4, 1997, the work schedule was manipulated so that appellant

would not be paid for the holiday;

(4) In the July 5 - 18, 1997 pay period, appellant was not paid for a

2.5 hour shortage;

(5) On June 11, 1997, appellant learned that his character was defamed

by the Plant Safety Specialist (PSS) in a cc:mail (dated March 20, 1997)

to appellant's supervisor;

(6) Appellant feels that the 12 files he discovered in his supervisor's

office were used as a chain conspiracy against him for possible

disciplinary action, including a proposed removal;

(7) On or about July 1, 1997, appellant became aware of a cc:mail memo

by the PSS, dated March 20, 1997, which appellant feels was forwarded

to other postal officials in violation of his civil rights, privacy,

and rights under the Rehabilitation Act;

(8) On or about July 1, 1997, appellant became aware of a cc:mail memo

by the Senior Injury Compensation Specialist (SICS), dated March 13,

1997, which appellant feels is a conspiracy to place him in a hostile

work environment, and force him to do a job with duties that conflict

with his medical restrictions;

(9) On or about July 1, 1997, appellant became aware of a cc:mail memo

by the SICS, dated April 4, 1997, which appellant feels is a conspiracy

to discredit his stress claim and place him in a false light; and

(10) On an unspecified date, the file containing 12 folders of appellant's

confidential records was used to defame, embarrass, and present him in

a bad image, with the intent to destroy his reputation and character.

The FAD accepted allegations (2) through (5) for investigation,

and dismissed allegation (1), pursuant to 29 C.F.R. �1614.107(a), for

failure to state a claim, and allegations (6) through (10), pursuant to

29 C.F.R. �1614.107(b), for raising matters that were not brought to

the attention of an EEO Counselor, and which were not like or related

to matters brought to the attention of an EEO Counselor.

The prior decision affirmed the dismissal of allegations (1), (6) and

(10) for failure to state a claim, and of allegation (7) for raising

the same matter that was the subject of another allegation. However,

the prior decision found that even if allegations (8) and (9) were not

raised in counseling, they were "like or related" to allegation (5),

which was raised in counseling. Accordingly, the prior decision reversed

the FAD's dismissal of allegations (8) and (9), and remanded those

two allegations for processing.

In his Request to Reconsider, appellant contends that allegations (6),

(7) and (10) were brought to the attention of an EEO Counselor. The

agency has filed no reply to appellant's Request to Reconsider.

EEOC Regulation 29 C.F.R. �1614.107(b) provides that an agency shall

dismiss any portion of a complaint which raises a matter that has not

been brought to the attention of an EEO Counselor, and is not like or

related to a matter on which the complainant has received counseling.

A later allegation is "like or related" to the original allegation if the

later allegation adds to or clarifies the original allegation and could

reasonably have been expected to grow out of the original allegation

during the investigation. See Calhoun v. United States Postal Service,

EEOC Request No. 05891068 (March 8, 1990); Webber v. Department of Health

and Human Services, EEOC Appeal No. 01900902 (February 28, 1990).

The prior decision stated that it need not reach the issue of whether

appellant raised allegations (6) and (10) with the EEO Counselor, because

the allegations were properly dismissed on the alternative ground of

failure to state a claim. Inasmuch as appellant alleges hostile work

environment harassment by his supervisors, we find that allegations

(6) and (10) may comprise actionable allegations, depending upon what

facts emerge in the investigation. Moreover, since appellant alleges

ongoing harassment, rather than separate incidents or isolated acts of

disparate treatment, allegations (6) and (10) are like or related to

those allegations brought to the attention of the EEO counselor. Mitchell

v. Department of Veterans Affairs, EEOC Request No. 05960656 (January 5,

1998) (incident characterized as indicative of ongoing discrimination

and harassment, rather than a separate incident or isolated act of

discrimination, is like or related to matters discussed with counselor

also characterized as ongoing discrimination and harassment); Price

v. General Services Administration, EEOC Request No. 05960829 (October

1, 1998) (allegations characterized as part of a pattern of ongoing

discriminatory harassment, as opposed to separate and discrete incidents

of discrimination in and of themselves, are like or related to allegations

that were counseled). Therefore, appellant need not seek counseling of

allegations (6) and (10), and the agency should process the allegations.

Cf. Stephens v. Department of the Air Force, EEOC Appeal No. 01980936

(October 23, 1998) (allegation that supervisors conspired to harass

appellant accepted for investigation).<1>

Accordingly, after a review of appellant's request to reconsider, the

previous decision, and the entire record, the Commission finds that

the request meets the criteria of 29 C.F.R. �1614.407(c), and it is

the decision of the Commission to GRANT the request. The decision in

EEOC Appeal No. 01980610 (August 27, 1998) remains the decision of the

Commission, except as MODIFIED herein. The agency shall comply with

the ORDER below, which remands allegations (6), (8), (9), and (10) for

processing. There is no further right of administrative appeal on the

decision of the Commission on this Request to Reconsider.

ORDER (E1092)

The agency is ORDERED to process remanded allegations (6), (8), (9), and

(10), 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 acknowledgment 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.

RIGHT TO FILE A CIVIL ACTION (Q0993)

This decision affirms the agency's final decision 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 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. 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 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 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:

November 5, 1999

Date Carlton M. Hadden, Acting Director

1The agency is also obligated to thoroughly investigate all of

the circumstances which may be relevant to appellant's accepted

allegations. See EEOC Management Directive 110 5-4 (October 22,

1992). For example, even though allegation (1) does not state a

claim, it must still be investigated as background evidence to the

extent that it may be probative of appellant's claims. See United

Air Lines v. Evans, 431 U.S. 553, 558 (1977); Ferguson v. Department

of Justice, EEOC Request No. 05970792 (March 30, 1999).