Carolyn Hibbitt, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Region), Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01993403 (E.E.O.C. Apr. 24, 2000)

01993403

04-24-2000

Carolyn Hibbitt, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Region), Agency.


Carolyn Hibbitt, )

Complainant, )

)

v. ) Appeal No. 01993403

) Agency No. 4D400105794

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Allegheny/Mid-Atlantic Region), )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with the Commission from a final

agency decision ("FAD") 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. and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.<1>

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue on appeal is whether the agency improperly dismissed the

complaint for untimely EEO contact.

BACKGROUND

The record indicates that on August 26, 1994 complainant filed a formal

complaint with the agency alleging the bases of race, color and age

discrimination and cited three issues as follows: (1) on May 16, 1994,

the agency issued complainant a letter of warning; (2) on June 2, 1994,

the agency sent complainant home on administrative leave; and (3) on June

16, 1994, the agency issued complainant a notice of removal. The agency

accepted the complaint and referred the matter to an EEOC Administrative

Judge (AJ) for a hearing. Before the hearing was completed, the

AJ determined that complainant wished to include the added basis of

retaliation. The AJ further concluded that complainant's retaliation

claim was like or related to the issues already before her. On July 7,

1998 the AJ remanded the complaint to the agency for a supplemental

investigation and counseling on the added basis of retaliation.

In compliance with the AJ's remand order, the agency conducted an inquiry

regarding the added basis of retaliation. By FAD dated February 22,

1999, the agency dismissed complainant's allegation for untimely

counselor contact. From this FAD, complainant now appeals.

ANALYSIS AND FINDINGS

The Commission has held that a complainant may allege discrimination

on all applicable bases, including sex, race, national origin, color,

religion, age, disability and reprisal, and may amend his or her

complaint at any time, including at the hearing, to add or delete bases

without changing the identity of the claim. See Dragos v. United States

Postal Service, EEOC Request No. 05940563 (January 19, 1995). Here,

the complainant raised retaliation as an additional basis before the AJ.

We take this opportunity to point out that the AJ should have allowed

the complainant to add the additional basis of retaliation since she

concluded that the retaliation claim was like or related to the claims

already before her. See Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter referred to as 29 C.F.R. 1614.106(d)).

In any event, the agency erred by processing the complainant's attempted

amendment as a new complaint. Complainant is not required to seek

counseling or to file a separate complaint in order to add the basis of

retaliation.

CONCLUSION

Accordingly, we REVERSE the agency's dismissal of complainant's

retaliation claim and REMAND it for processing as described below.

ORDER (E0400)

If Agency Case Number 4-D-400-1057-94 remains before an AJ, the agency is

ORDERED to bring this remand to the AJ's attention and request that the

AJ consolidate this matter along with any other like or related claims,

to the pending case.

If Agency Case Number 4-D-400-1057-94 is not before the AJ, the agency is

ORDERED to offer the complainant the right to a hearing on this remanded

matter and any other like or related claim. If it becomes necessary for

the AJ to make findings on the remanded matter, he or she may consider

the findings already reached in Agency Case Number 4-D-400-1057-94.

The agency is ORDERED to process this matter 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 this remand 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 (S0400)

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. 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:

April 24, 2000 ________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.