01985386_r
11-22-1999
Anthony L. Davis, Complainant, v William J. Henderson, Postmaster General, United States Postal Service, Agency.
Anthony L. Davis, )
Complainant, )
)
v ) Appeal No. 01985386
) Agency No. 1-H-336-0020-97
William J. Henderson, ) Hearing No. 150-98-8041X
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning his 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., and the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. �621 et seq.<1> The final agency decision
was issued on June 11, 1998. The appeal was postmarked June 25, 1998.
Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37659 (1999)
(to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)), and
is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly defined the issues
in the complaint.
BACKGROUND
Complainant initiated contact with an EEO Counselor on March 24, 1997,
alleging that he had been subjected to discrimination based on his race
(African-American), color (black), sex (male), age (DOB: September 3,
1956), and in retaliation for his prior EEO activity when he received
a 7-day suspension on March 17, 1997. Unable to resolve the matter,
complainant filed a formal EEO complaint on May 22, 1997, raising the
7-day suspension issue. The issue of the complaint was defined by the
agency in a letter dated July 18, 1997, as being that on March 17, 1997,
complainant received an investigative interview, and was subsequently
issued a 7-day suspension for failure to follow instructions. Complainant
was directed to notify the agency within seven days if he objected to
the definition of the issue to be processed. There is no record of any
objection by the complainant.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ) on October 7, 1997.. At the prehearing
conference, complainant sought to include additional issues in his
complaint. The record indicates that on May 7, 1998, the AJ remanded the
complaint to the agency for an identification of the issues set forth
in the complaint. By letter dated June 7, 1998, complainant informed
the EEO Compliance and Appeals Coordinator that the following issues
were also part of his complaint:
1. Whether the agency, through complainant's supervisor, discriminated
against complainant due to his race by singling him out during a meeting
of all employees and stating that complainant needed permission to go
to the bathroom.
2. Whether the agency, through complainant's supervisor, engaged in
other practices of harassment against complainant due to his race in
that at that time complainant was the sole black male employed in that
supervisory unit.
3. Whether the agency, through complainant's supervisor, has maintained
a hostile work environment which discriminates against black males in
that supervisory unit, and in particular complainant who is employed
under that supervisor.
In a final decision dated June 11, 1998, the agency determined that the
scope of the complaint was the same as that stated in its letter dated
July 18, 1997.
On appeal, complainant reiterates that the issues of his complaint
should include those issues raised in his June 7, 1998 letter. Further,
complainant emphasizes that his supervisor's actions against him are
in retaliation for the prior EEO complaints that he filed. According
to complainant, his supervisor has a history of insensitivity toward
African-Americans. Complainant states that at an office Halloween party
two years ago, his supervisor dressed up like �Buckwheat�, and said to
him �see, I'm not prejudiced, Buckwheat is my favorite little rascal.�
Complainant argues that the EEO Compliance and Appeals Coordinator ignored
evidence, in particular his investigative affidavit, in an effort
to narrow the scope of the complaint. Complainant notes that in the
affidavit he raised the incident where his supervisor told him at a staff
meeting in March 1997, that he would have to secure permission from him
prior to going to the bathroom. Complainant submits a statement from his
union steward. The union steward states that complainant's supervisor has
imposed disciplinary measures against complainant since 1992. The union
steward refers to several suspensions and letters of warning. Further,
the union steward cites instances where complainant had to submit medical
documentation for absences, confrontations on the workroom floor occurred
in front of complainant's peers, and complainant was constantly watched
by his supervisor.
ANALYSIS AND FINDINGS
As indicated in the footnote above, on November 9, 1999, new regulations
went into effect which apply to all complaints pending at any stage in the
administrative EEO process. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as 29 C.F.R. �1614.106(d))
provides that a complainant may amend a complaint at any time prior to
the conclusion of the investigation to include issues or claims like or
related to those raised in the complaint. After requesting a hearing,
a complainant may file a motion with the AJ to amend a complaint to
include issues or claims like or related to those raised in the complaint.
In the present case, complainant alleges that his supervisor has
engaged in a pattern of harassment against him in reprisal for his
prior EEO activity. Complainant contends that he raised other issues
regarding this harassment in his investigative affidavit, with the
AJ at the prehearing conference, and in his June 7, 1998 letter.
Whether complainant should be permitted to amend his complaint at this
stage in the process requires an analysis of whether these new claims
are like or related to the issue raised in his complaint. A later claim
is "like or related" to the original complaint if the later claim adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990). Here, complainant alleged that the
7-day suspension raised in his formal complaint is one incident of the
harassment to which he has been subjected from his supervisor and during
the investigation, complainant raised other instances of harassment by
his supervisor. Clearly, these claims grew out of complainant's original
complaint. Consequently, we find that complainant should be permitted
to amend his complaint to include the additional issues raised in his
June 7, 1998 letter and investigative affidavit. The agency shall take
the actions as directed in the Order below.
ORDER
The agency is ORDERED to take the following actions:
Notify complainant within fifteen (15) calendar days that he has fifteen
(15) calendar days from his date of receipt of the notice within which
to notify the agency of all incidents of harassment by his supervisor
which he wants to pursue through his May 22, 1997 complaint.
Within fifteen (15) calendar days of receipt of complainant's response, or
the expiration of the period for a response, if no response is received,
the agency shall issue complainant a notice of the claims that will
be addressed through his May 22, 1997 complaint. Further, the agency,
within the same time frame, shall notify the appropriate AJ of the status
of the case and request the scheduling of a hearing for complainant May
22, 1997 complaint.
A copy of the agency's notices to complainant and the agency's notice
to the AJ 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 (M1199)
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). 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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 that 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 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:
November 22, 1999
_________________ _____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE
OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if any), and the agency on:
______________________
______________________
1 On 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.