01984486
09-28-2000
Ann Robinson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ann Robinson v. United States Postal Service
01984486
September 28, 2000
.
Ann Robinson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01984486
Agency No. 4-H-330-0331-97
DECISION
Complainant filed a timely appeal with this Commission from the agency's
statement concerning the scope of its investigation dated April 13, 1998.
The agency provided complainant with appeal rights to the Commission in
the April 13, 1998 decision.
After contacting an EEO Counselor, complainant filed a formal
complaint on October 30, 1997, alleging discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.<1> In her complaint, complainant alleged that
she was subjected to discrimination and harassment on the bases of race
(White), sex (female), age (67), and physical disability (back/dizziness),
when: complainant was told she was too old to be a carrier and should
retire; complainant was denied reasonable accommodation to the clerk
craft; complainant was denied disability retirement; complainant was
constructively discharged against her will; complainant was issued
suspensions; the agency refused to process complainant's OWCP claims;
and complainant was denied light/limited duty. Complainant stated that
the incidents identified in her formal complaint constituted a continuing
violation and occurred from February 21, 1997 to the present.
The agency characterized the complaint by stating that complainant
was harassed, suspended, denied light/limited duty, denied reasonable
accommodation, denied disability retirement and forced to retire.
The agency identified the dates of the incidents as occurring from
February 21, 1997 to the present. Complainant was directed to notify
the agency within seven days of receipt of the letter if she objected
to the definition of the issue to be processed. The record reveals
that complainant objected to the agency's definition of the issues in a
February 27, 1998 letter. Specifically, complainant requested that the
dates identified in her formal complaint be adjusted to read �continuing
violation� and �February 21, 1997, and ongoing to adjudication.� In
addition, complainant requested the agency add to the issues identified
two letters of suspension and the agency's refusal to process her workers'
compensation claims. The agency issued a final decision on April 13,
1998, stating that the scope of the investigation would remain as stated
in its February19, 1998 letter. Complainant filed the present appeal.
On appeal, complainant claims that the agency erred in failing to include
the processing of the OWCP claims as an issue. In addition, complainant
states that the agency failed to include �continuing violation� and
�ongoing� in identifying the dates of the alleged discriminatory matters.
Complainant states that she wants to clarify the issues so that the agency
will be precluded from dismissing portions of her claim for untimeliness.
Upon review of the record, we find that the agency incorrectly omitted
one issue from complainant's complaint. In both complainant's formal
complaint, as well as the information she provided for precomplaint
counseling, complainant clearly alleged that her discrimination complaint
included the agency's refusal to process her OWCP claims. We find that
absent any agency substantiation or basis provided by EEOC Regulations
supporting its decision to exclude an issue complainant has clearly
raised in her complaint, the agency's omission of this matter from the
scope of its investigation was improper. With regard to complainant's
contention that the agency failed to include �continuing violation� and
�ongoing� in identifying the dates of the alleged discriminatory actions,
we find that the agency properly identified the dates of the alleged
discriminatory matters as February 21, 1997 to the present.<2>
Accordingly, the agency's decision defining the dates of the alleged
discriminatory incidents was proper and is AFFIRMED. The agency's
decision to omit the processing of complainant's OWCP claims was improper
and is REVERSED and the complaint as defined herein is REMANDED to the
agency for further processing in accordance with the Order 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
September 28, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2We note that our decision does not address whether complainant timely
contacted an EEO Counselor.