Anne L. Herling, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 21, 2000
01a03377 (E.E.O.C. Jul. 21, 2000)

01a03377

07-21-2000

Anne L. Herling, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Annie L. Herling v. USPS

01A03377

07-21-00

.

Anne L. Herling,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03377

Agency Nos. 1J-603-0022-00 - 1J-603-0037-00

1J-603-0040-00 - 1J-603-0050-00

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> According to complainant, the final agency

decision was received on February 25, 2000.<2> The appeal was

postmarked March 25, 2000. Accordingly, the appeal is timely (see 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.402 (a)), and is accepted by the Commission in

accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at

29 C.F.R. � 1614.405).

The issue on appeal is whether, for the reasons set forth below, the

agency properly dismissed complainant's 27 complaints.

In Complaint Nos. 1J-603-0022-00, 1J-603-0029-00, 1J-603-0030-00,

1J-603-0031-00, 1J-603-0032-00, 1J-603-0033-00, 1J-603-0035-00 and

1J-603-0036-00(hereinafter, Complaints (1), (8), (9), (10), (11),

(12), (14), and (15), respectively), complainant alleged that she was

discriminated against because of her race, religion, national origin,

and in retaliation for engaging in previous EEO activity when A-1, the

EEO Compliance/Appeals Coordinator, failed to produce records relevant

to various EEO cases that were before an EEOC AJ for a hearing held on

September 8, 1999.<3>

In Complaint No. 1J-603-0023-00 (hereinafter, Complaint (2)), complainant

alleged that she was discriminated against because of her race, religion,

national origin, and in retaliation for engaging in previous EEO activity

when A-1 distributed a letter about workplace violence. She also claimed

that A-1 committed a criminal offense when he perjured himself at the

September 8, 1999 hearing.

In Complaint Nos. 1J-603-0024-00 and 1J-603-0049-00 (hereinafter,

Complaints (3) and (26), respectively), complainant alleged that she was

discriminated against because of her race, religion, national origin, and

in retaliation for engaging in previous EEO activity when a Commission

employee, B-1, did not review the agency's resources and procedures to

ensure that, among other things, the agency made reasonable efforts

to resolve complaints in a timely manner, develop adequate factual

records, and issue decisions that were consistent with acceptable

legal standards. Complainant also alleged discrimination because

B-1 did not grant her request for an extension to complete EEO Case

No. 1J-603-0022-98, which was before the EEOC AJ at the September 8,

1999 hearing.

In Complaint No. 1J-603-0025-00 (hereinafter, Complaint (4)),

complainant alleged that she was discriminated against because of her

race, religion, national origin, and in retaliation for engaging in

previous EEO activity when an Administrative Judge, C-1, offered her

$100.00 for the following EEO cases, 1J-603-0051-97, 1J-603-0020-98,

1J-603-0025-98, 1J-603-0026-98, 1J-603-0027-98, 1J-603-0092-98,

1J-603-0095-98, 1J-603-0117-98, 1J-603-0129-98, and 1J-603-0130-98.

According to complainant, she rejected the AJ's offer.

In Complaint Nos. 1J-603-0026-00, 1J-603-0027-00, 1J-603-0028-00,

and 1J-603-0050-00 (hereinafter, Complaints (5), (6), (7) and (27),

respectively), complainant alleged that she was discriminated against

because of her race, religion, national origin, and in retaliation for

engaging in previous EEO activity when D-1, an EEO Counselor/Investigator,

sent her notices, dated December 12, 1997, concerning her right to file

formal complaints pertaining to various EEO cases.

In Complaint No. 1J-603-0034-00(hereinafter, Complaint (13), complainant

alleged that she was discriminated against because of her race, religion,

national origin, and in retaliation for engaging in previous EEO activity

when A-1 failed to reply to and comply with the Federal Register regarding

Case No. 1J-603-0051-97, which was heard by the Commission on September

8, 1999.

In Complaint Nos. 1J-603-0037-00, 1J-603-0041-00, and 1J-603-0043-00

(hereinafter, Complaints (16), (18), and (20), respectively),

complainant alleged that A-1 and F-1, the agency's representative,

discriminated against her because of her race, religion, national origin,

and in retaliation for engaging in previous EEO activity when certain

witnesses either appeared or failed to be called before the September 8,

1999 hearing.

In Complaint No. 1J-603-0040-00 (hereinafter, Complaint (17)), complainant

alleged that she was discriminated against because of her religion and in

retaliation for engaging in previous EEO activity when E-1, Supervisor

Distribution Operations, disapproved her PS Form 3971 for .22 units of

sick leave for November 17, 1998.<4>

In Complaint No. 1J-603-0042-00 (hereinafter, Complaint (19)), complainant

alleged that she was discriminated against because of her race, religion,

national origin, and in retaliation for engaging in previous EEO activity

when G-1, Manager, Distribution Operations, was allowed to maintain his

job position after the EEOC hearing on September 8, 1999.

In Complaint Nos.1J-603-0044-00, 1J-603-0046-00, 1J-603-0047-00, and

1J-603-0048-00 (hereinafter, Complaints (21), (23), (24), and (25),

respectively) complainant alleged that she was discriminated against

because of her religion and in retaliation for engaging in previous EEO

activity by the Postmaster General, C-1and F-1 at the September 8, 1999

hearing. Complainant did not specify how she was discriminated against.

In Complaint No. 1J-603-0045-00 (hereinafter, Complaint (22)), complainant

alleged that she was discriminated against because of her race, religion,

national origin, and in retaliation for engaging in previous EEO activity

when H-1, Manager, EEO, did not change the date of the September 8,

1999 hearing.

On February 16, 1999, the agency issued a final decision that dismissed

complainant's complaints on the grounds that her claims alleged

dissatisfaction with the processing of previously filed complaints.

The agency also determined that complainant failed to state a claim.

This appeal followed.

Pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.107(a)(8)), an agency may

dismiss a claim that alleges dissatisfaction with the processing of a

previously filed complaint. Accordingly, we find that Complaint (1),

the portion of Complaint (2) pertaining to A-1 committing a criminal

offense by perjuring himself at the September 8, 1999 Hearing, and

Complaints (3), (4), (5), (6), (7), (8), (9), (10),(11), (12), (13),

(14), (15), (16), (18), (20), (21), (22), (23), (24), (25), (26) and

(27) were properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(8).

Therefore, we AFFIRM their dismissal.

With respect to that portion of Complaint (2) pertaining to A-1's

distribution of a letter about workplace violence and Complaint (19),

we find that complainant failed to establish that she suffered a harm or

loss with respect to a term, condition, or privilege of her employment

for which there is a remedy. Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 22, 1994). Also, with respect to

complainant's claim of reprisal discrimination regarding these matters,

we find no persuasive evidence that these actions were reasonably

likely to deter complainant from engaging in protected EEO activity.

Carroll v. Department of the Army, EEOC Request No. 05970939 (April

3, 2000). Therefore, we AFFIRM the agency's dismissal of these claims

on the grounds that they fail to state a claim. 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified as 29 C.F.R. � 1614.107(a)(1)).

Finally, with respect to Complaint (17), we do not find that this matter

pertains to the processing of a prior EEO complaint. Moreover, we find

that complainant's allegation, that her November 17, 1998 request for

.22 units of sick leave was disapproved for discriminatory reasons, does

state a claim. Consequently, we will REVERSE the dismissal of Complaint

(17) and will REMAND this matter in accordance with the Order below.<5>

ORDER (E0400)

The agency is ORDERED to process the remanded claim in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claim 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

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, Acting Director

Office of Federal Operations

__07-21-00________________

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 64 Fed. Reg. 37,644 (1999),

where applicable, in deciding the present appeal. The regulations, as

amended, may also be found at the Commission's website at www.eeoc.gov.

2The agency offered no evidence or argument that would contradict this

assertion.

3Complainant did not specify her race, national origin, or religion.

The record, however, indicates that her national origin is Hispanic and

her religion is designated as Christian.

4In its EEO counselor's report, the agency indicated that this matter

was adjudicated at the September 8, 1999 hearing. We note, however, that

there is no evidence in the record to support the agency's contention.

5On appeal, the agency presented evidence that since March 1997,

complainant has filed ninety (90) formal complaints of discrimination.

According to the agency, complainant's entire appeal should be dismissed

on the grounds that she has engaged in a clear pattern of misusing

the EEO process. Because of our decisions above, we will decline the

agency's request.