Cherie D. King, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Area), Agency.

Equal Employment Opportunity CommissionMay 18, 2000
05981196 (E.E.O.C. May. 18, 2000)

05981196

05-18-2000

Cherie D. King, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Area), Agency.


Cherie D. King v. United States Postal Service

05981196

May 18, 2000

Cherie D. King, )

Complainant, )

) Request No. 05981196

v. ) Appeal No. 01966141

) Agency No. 4H-370-1075-94

William J. Henderson, ) Hearing No. 250-95-8083X

Postmaster General, )

United States Postal Service, )

(Southeast/Southwest Area), )

Agency. )

______________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

On September 25, 1998, the United States Postal Service (hereinafter

referred to as the agency) timely initiated a request to the Equal

Employment Opportunity Commission (the Commission) to reconsider the

decision in Cherie D. King v. William J. Henderson, Postmaster General,

United States Postal Service, EEOC Appeal No. 01966141 (August 25,

1998).<1> EEOC Regulations provide that the Commission may, in

its discretion, reconsider any previous Commission decision where the

requesting party demonstrates 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. See 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.405(b)). For the reasons stated below, the agency's request

is denied.

The issue presented is whether the previous decision's finding of

discrimination, which was predicated on the Administrative Judge's

decision to address issues from complainant's complaint No. 4H-370-1189-95

during the hearing concerning Complaint No. 4H-370-1075-95, should

be reconsidered.

The pertinent facts were set forth in detail in the Recommended Decision

(RD) of the Administrative Judge (AJ) and in the previous decision and

are incorporated by reference herein. We, however, note the following

salient facts: complainant, at the time of the alleged discrimination,

was employed as a City Letter Carrier at the agency's East Lamar

Station in Memphis, Tennessee. In January 1994, she filed Complaint

No. 4H-370-1075-95 against the agency. In that complaint, she alleged

that she was subjected to disparate treatment and harassment (hostile

environment) on the bases of race (White) national origin (unspecified)<2>

and sex (female) after agency officials became aware that she was involved

in an intimate relationship with a black male coworker. According to

complainant, she received: (1) a seven-day suspension for failing to

follow instructions in July 1993; and (2) a thirty-day suspension for

insolent behavior in October 1993 (Complaint-1).<3>

In a March 1995 complaint, designated Complaint No. 4H-370-1189-95

(Complaint-2), complainant claimed that in reprisal for complaining about

S-1's treatment of her, she was subjected to continued harassment when:

(1) on January 8, 1995, her new supervisor (S-2) told a coworker not to

speak to her;

(2) on January 14, 1995, she was issued a 14-day suspension by S-2 when

she deviated from her route;

(3) on January 30, 1995, S-2 issued her a Letter of Warning for not

reporting to work early on January 18, 1995; and

(4) on February 14, 1995, S-2 followed her into the bathroom, violated

her privacy, and ordered her off the clock when she had to attend to a

matter of a personal nature.

In a letter dated March 16, 1995, complainant's attorney requested that

"[a]ll of [complainant's] pending EEO claims be processed together.

[Complainant] is asserting that the most recent alleged incidents are

part of an ongoing pattern and practice of harassment and retaliation."

There is no dispute by the parties that the allegations contained in

Complaint-2 were never investigated by the agency.

Prior to the hearing concerning Complaint-1, which was held on April 8,

1996, the parties entered into the following stipulation concerning the

matters to be addressed at the hearing:

Complainant is asserting that she has been subjected to disparate

treatment and harassment on the bases of race and sex after her supervisor

(a black female) became aware that complainant, a white female,

was involve in an intimate relationship with a black male coworker.

Complainant asserts that this harassment continued for an extended period

of time, and intensified after she complained of the disparate treatment

to agency managers. Complainant asserts that these further actions by

the agency constitute a continuing pattern of harassment and retaliation,

involving disparate disciplinary actions and job assignments as well as

harassment as to the terms and conditions of employment, thereby creating

a hostile work environment in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

On June 25, 1996, the AJ issued her RD. We note that early in her

decision, the AJ found that the agency, in a letter dated March 2, 1995,

incorporated Complaint-2 into Complaint-1.<4> Therefore, the AJ's RD

pertained to all of the allegations contained in both Complaints. The AJ

found that there was adequate evidence in the record to establish a prima

facie case of discrimination on all the alleged bases. The AJ also found

that the agency's articulated reasons for its actions were pretextual.<5>

Thereafter, the agency issued a final decision on June 24, 1996, that

rejected the AJ's RD. The agency limited its determination, however, to

allegation (2) of Complaint-1, i.e., the matter of complainant's receipt

of a 30-day suspension for engaging in insolent behavior toward S-1 in

October 1993. According to the agency, this was the only issue that was

properly before it.<6> With regard to Complaint-2, the agency held that

the allegations contained therein should never have been considered by

the AJ. According to the agency, the AJ erred when she found that the

agency, by letter dated March 2, 1995, incorporated the issues contained

in Complaint-2 into Complaint-1. The March 2, 1995 letter, the agency

maintained, indicates that the issues contained in Complaint-2, which

were brought to the attention of the EEO office on February 28, 1995, had

erroneously been assigned the case number 1H-381-1036-95. The agency, in

the letter, merely indicated that these matters were being incorporated

into the correct case number, that is, 4H-370-1189-95. Therefore,

according to the agency, the March 2, 1995 letter had nothing to do with

Complaint-1.<7> A review of the letter supports the agency's position.

Finally, the agency's final decision noted that prior to the hearing its

legal representative discovered, for the first time, that the allegations

contained in Complaint-2 would also be investigated at the hearing.

According to an affidavit, the legal representative indicated that he

objected and requested that the hearing be postponed until the agency

could properly investigate and prepare a response to the additional

allegations. At this point, complainant's attorney apparently presented

a letter to the AJ that indicated that Complaint-1 and Complaint-2

had been combined.<8> Although the legal representative stated that

he was unaware of the letter, the AJ denied his postponement request.

He was given two hours to contact and prepare any additional witnesses.

According to the legal representative, he contacted a management official

who was involved in allegation (2) of Complaint-2 and reinterviewed S-2,

who was already going to be a witness. We note that the facts depicted

in the legal representative's affidavit were not part of the hearing

transcript, but were confirmed by an affidavit submitted by his assistant.

The previous decision, in light of the issue stipulated to by the

parties, found that the AJ appropriately considered the allegations

contained in Complaint-2. The previous decision also found that the

agency's contention that it did not have time to fully investigate these

allegations, as of the time of the actual hearing, was disingenuous since

a full year had expired between the request of complainant's attorney to

consolidate the issues and the hearing. Finally, the previous decision

also found that the agency's contention that Complaint-2 was beyond the

tenor of the stipulation was not supported by the record. Consequently,

the previous decision found no reason to disturb the AJ's finding of

discrimination and reversed the agency's final decision.

In its request to reconsider (RTR), the agency argued that both the

AJ and the previous decision erred when the allegations raised in

Complaint-2 were addressed. According to the agency, the AJ exceeded

her authority by consolidating a complaint that was, at that point,

currently under investigation; therefore, the agency was placed in

an unfair position. The agency also argued that although more than

180-days had expired without an investigation of Complaint-2, there was

no evidence that complainant ever requested an administrative hearing.

Finally, the agency maintained that the Commission, considering its

backlog of cases, should be understanding with regard to its failure to

investigate Complaint-2 after a year.

In complainant's response, her attorney argued that the agency's RTR

failed to satisfy the criteria for reconsideration. Furthermore, the

attorney noted that the agency ignored the events that took place after

the March 2, 1995 letter was issued, i.e., his March 16, 1995 letter

requesting that all of complainant's pending claims be processed together,

and the stipulation that was entered into by the parties in April 1996.

In order to merit the reconsideration of a prior Commission decision,

the requesting party must submit written argument or evidence which

tends to establish that at least one of the criteria of 29 C.F.R. �

1614.405(b) has been met. The Commission's scope of review on a request

for reconsideration is narrow. Lopez v. Department of the Air Force,

EEOC Request No. 05890749 (September 28, 1989). A reconsideration

request is not merely a form of a second appeal. Regensberg v. USPS,

EEOC Request No. 05900850 (September 7, 1990).

At the outset, we find that the agency's assertions concerning the March

2, 1995 letter were correct. The AJ, to the extent that she found

that the agency's March 2, 1995 letter incorporated Complaint-2 into

Complaint-1, did err. Based on the totality of the record, however, we

do not find that this error was material; and, therefore, reconsideration

is not warranted.

The agency's RTR does not meet the regulatory criteria of 29 C.F.R. �

1614.405(b). We find that the AJ did not abuse her discretion when she

considered the issues raised in Complaint-2. The agency ignored the fact

that its legal representative stipulated, one year after it received a

request from complainant's attorney to consolidate all of her pending

EEO cases, that the hearing would also address complainant's contention

that after she complained to her supervisors about S-1's treatment of

her, she was subjected to continued acts of harassment for an extended

period of time. We, therefore, are not persuaded by the agency's claim

that it was unfairly burdened by the AJ's decision. The agency had more

than a year to investigate Complaint-2, but chose not to. Complainant,

after the expiration of 180 days, could have requested an administrative

hearing on Complaint-2. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified as 29 C.F.R. � 1614.108(f) and (g)). Although such a formal

request was never made, we find that the parties April 1996 stipulation

was, for all intents and purposes, a request by complainant and an

agreement by the agency to address Complaint-2 at the hearing.

After a review of the agency's request for reconsideration, complainant's

response, the previous decision, and the entire record, the Commission

finds that the request fails to meet the criteria of 29 C.F.R. �

1614.405(b), and it is the decision of the Commission to deny the request.

The decision in EEOC Appeal No. 01966141 (August 25, 1998) remains the

Commission's final decision. The agency will comply with the Order stated

in the previous decision, as modified below. There is no further right

of administrative appeal from a decision of the Commission on a request

to reconsider.

ORDER

The agency is ORDERED to take the following remedial actions:

1. The agency shall take corrective, curative and preventive action

to ensure that race discrimination does not recur, including but not

limited to providing training to the responsible official(s) at the

East Lamar Station (East Lamar) in Memphis, Tennessee, and any other

agency official formerly stationed at East Lamar who took part in the

discriminatory activities described herein, in the law against employment

discrimination. This training shall take place within 120 calendar days

of the date this decision becomes final. Within thirty (30) calendar

days of the date the training is completed, the agency shall submit to

the Compliance Officer appropriate documentation evidencing such training.

2. The agency, as a result of our findings of discrimination with regard

to Complaints 1 and 2, shall: reimburse complainant for all leave taken

as a result of the discrimination and award her all other benefits she

would have accrued had the discrimination not occurred; and rescind all

discriminatory, disciplinary actions taken against her that were covered

by Complaints 1 and 2. The agency shall also reimburse her for all

suspensions served, as a result of the discrimination, for which she

has not already received pay; and purge her personnel records of all

references to the discriminatory, disciplinary actions indicated above.

3. Complainant shall not be required to work under the supervision of

S-1 or S-2. If this has not already been accomplished, then the agency

shall accomplish this by affording complainant an optional transfer to an

equivalent position on another tour, or in another location or building,

or if she declines such a transfer, by transferring S-1 or S-2.

4. The agency, no later than sixty (60) days from the date this decision

becomes final, shall conduct and complete a supplemental investigation

in order to determine complainant's entitlement, if any, to compensatory

damages.<9>

5. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of leave owed and other benefits due complainant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its East Lamar facility copies of

the attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by 64

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

referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

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).

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:

05-18-00

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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

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.

2. Apparently, this basis was subsequently withdrawn by complainant.

3. Allegation (1) occurred when complainant, who was listed on the

overtime desired list, refused her immediate supervisor's (S-1) request

that she work overtime. Allegation (2) concerned a confrontation between

complainant and S-1 where complainant was suspended for calling S-1 a

disparaging name.

4. RD at pg. 4, note 1.

5. The AJ also imposed sanctions on the agency because it refused to

comply with the complainant's discovery request and her Order to Compel.

The sanctions were: 1) an adverse inference was drawn that information

sought by the complainant, but not produced by the agency, would have

been favorable to complainant's case, i.e., the information would have

shown that similarly situated employees were treated differently than

complainant; 2) the agency was precluded from offering evidence showing

similar treatment of similarly situated persons; and (3) complainant

was awarded reasonable attorney fees and costs.

6. The record is not clear why the agency did not address allegation

(1) of Complaint-1, or the issue that was stipulated to at the start of

the hearing.

7. Interestingly, however, the agency did not indicate when or if it

would ever investigate the allegations contained in Complaint-2.

8. We must assume that the letter referred to by the legal representative

is the March 2, 1995 letter.

9. In order to assess the claim, the agency shall request from complainant

evidence of and testimony establishing any pecuniary and nonpecuniary

injury suffered and its link to the agency's retaliatory actions.

See Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5,

1993); and Rivera v. Department of the Navy, EEOC Appeal No. 01934157

(July 22, 1994).