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).