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).