01986963
08-17-2000
Annie L. Herling, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Annie L. Herling v. United States Postal Service
01986963
August 17, 2000
.
Annie L. Herling,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01986963
Agency No. 1-J-603-0120-98
DECISION
On September 22, 1998, complainant filed an appeal with this Commission
from an agency decision dismissing her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.<1> The Commission
accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. �1614.405).
On January 12, 1998, complainant contacted the EEO office regarding claims
of discrimination based on reprisal, race, religion, and national origin.
Informal efforts to resolve complainant's concerns were unsuccessful.
On May 4, 1998, complainant filed a formal complaint. The agency framed
three claims in the following manner<2>:
1) On May 23, 1997 and on June 4, 1997, complainant was harassed by
management;
2) On July 29, 1997, complainant was sent home after two hours of
overtime; and
3) On December 27, 1997<3>, management discriminated against complainant's
co-worker.
The agency dismissed claims 1 and 2 for untimely EEO Counselor contact.
The agency determined that complainant should have contacted the EEO
office no later than July 19, 1997 and September 12, 1997, respectively,
with regard to the matters addressed in claims 1 and 2. The agency
therefore determined that complainant's January 12, 1998 EEO Counselor
contact was untimely with regard to those claims. The agency dismissed
claim 3 for failure to state claim.
On appeal, complainant addresses a variety of matters. However, the
Commission determines that portions of her appeal statement are confusing
and unclear. For example, issues of non-selection are presented on
appeal, although they are not otherwise addressed in the record. Further,
complainant asserts that the June 4, 1997 issue addressed in claim 1, was
cited to �demonstrate an ongoing systematic retaliation discrimination�
and the May 23 - 24, 1997 matters �were cited as supportive evidence of
retaliation discrimination to Case No. 1-J-603-0092-98.�
Moreover, the Commission notes that the Counselor's Report and agency
decision set forth the claims as identified above. However, in the formal
complaint, complainant typed �Wrong Issues� in the space provided for
specific actions that resulted in discrimination. Given the circumstances
of this case, we are unable to determine what complainant is specifically
alleging to be discriminatory. We therefore determine that the matter
must be remanded for clarification.
Accordingly the agency's decision dismissing the complaint is VACATED.
The complaint is REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
1. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall schedule in writing a meeting between complainant
and an EEO Counselor. The meeting shall provide complainant with the
opportunity to clarify the issues of her complaint and to identify the
dates of specific agency actions.
2. Within fifteen (15) calendar days of complainant's meeting with an EEO
Counselor, the agency shall issue a notice of acceptance and/or new final
decision, specifically setting forth the disputed actions raised therein.
3. A copy of the agency's acceptance letter or new final decision 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 (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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
August 17, 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 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.
2Although the agency did not number the claims we do so here for purposes
of clarification.
3It appears that the agency inadvertently cited the year 1998, rather
than 1997, as reflected in the Counselor's Report.