01991197
01-27-2000
Cordia M. Ford, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cordia M. Ford v. United States Postal Service
01991197
January 27, 2000
Cordia M. Ford, )
Complainant, )
)
v. ) Appeal No. 01991197
) Agency No. 4-H-300-0331-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 23, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her on
November 12, 1998, pertaining to 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 Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq.<1> In her complaint, complainant
alleged that she was subjected to discrimination on the bases of
physical disability (Fibromyalgia/Epigastric pain), mental disability
(Anxiety/Depression) and reprisal (prior EEO activity) when effective
June 6, 1998 she was converted to full time status.
The agency dismissed complainant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.105(a)(1), for failure to timely contact an EEO Counselor.
Specifically, in its November 4, 1998 FAD, the agency determined that,
in essence, the instant complaint charged as discriminatory, an agency
employment action requiring complainant to accept a position as a
part-time (PTF) clerk effective December 20, 1997. The FAD further
indicated that complainant was converted to full time status on June 6,
1998 and that complainant's July 27, 1998 counselor contact regarding
the issue of her conversion to full time was beyond applicable time
limits for seeking counseling.
Upon review, we determine that the agency's dismissal of the instant
complaint for untimely counselor contact was improper. We find instead
that the agency may have improperly defined complainant's complaint.
A review of the complaint indicates that complainant is alleging that
the agency converted her to full time status effective June 6, 1998
against the orders of her physician. Complainant also indicates that
she was on total disability at the time the agency converted her to
full time status. The complaint also contains references to the agency
taking away complainant's hospital insurance, life insurance and union,
and refers to "ongoing harassment and discriminating treatment" against
her. Upon review, the Commission cannot distinguish between the live
claims in complainant's complaint, and background information intended
to support claims. In a similar situation, the Commission remanded the
complaint back to the agency so that complainant could meet again with an
EEO Counselor in order that an agreement could be reached on the issues
in complainant's complaint. See Smith v. United States Postal Service,
EEOC Request No. 05921017 (April 15, 1993). The Commission noted in
Smith supra, that EEO Management Directive 110, Chap.2, III (October 22,
1992) provides that, at the counseling stage, the EEO Counselor must be
certain that the complainant's issues are clearly defined and that the
complainant agrees on what issues are to be the subject of the inquiry and
subsequent attempts at resolution. The Commission provided the following
guidance in Smith, supra which is applicable to the present case:
In defining the complaint, the agency must be careful to distinguish
live claims from argument or factual background in support of claims.
It is important that the agency make such distinctions in defining the
complaint so a focused investigation can be conducted and/or focused
FAD can be issued.
Having reviewed the entire record, the arguments on appeal, and for the
foregoing reasons, the Commission hereby VACATES the agency's dismissal
of complainant's complaint for untimely counselor contact and REMANDS
the complaint for further processing consistent with this decision and
applicable regulations. The parties are advised that this decision is
not a decision on the merits of complainant's complaint. The agency is
directed to comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to process complainant's complaint in accordance
with 29 C.F.R. �1614. and instructions in this decision. Specifically,
the agency shall:
(1) Schedule in writing a meeting between complainant and an EEO
Counselor so an agreement can be reached on the issues in complainant's
September 3, 1998 complaint, including dates of occurrence and the
specific incidents and individuals involved. After the meeting(s),
the Counselor must issue a new Counselor's report concerning the
meeting(s), defining the complaint and distinguishing live claims
from those intended as background information intended to support the
live claims. Complainant shall be permitted to clarify her complaint,
however, she shall not be permitted to raise new claims. Further,
the agency shall not require complainant to refile her September 3,
1998 complaint.
(2) If an agreement can be reached on the claims in complainant's
complaint, the agency shall then issue to complainant a letter of
acceptance. If, however, an agreement cannot be reached on a definition
of the issues in complainant's complaint, then the agency shall issue
a FAD defining the complaint, with appeal rights to the Commission.
Such a FAD must explicitly define all the claims in the complaint, i.e.,
the agency shall not dismiss claims de facto, by failing to define or
address claims
(3) If the agency intends to dismiss complainant's complaint in its
entirety, it must do so in a new final agency decision, with appeal
rights to the Commission, stating all legal grounds, facts, and
documents relied upon. The agency may not dismiss complainant's
complaint in part. If the agency does not intend to accept all of
complainant's claims for Investigation, the agency shall proceed
in accordance with the Commission's revised regulations set fort at
64 Fed. Reg. 37,656 (to be codified and hereinafter referred to as 29
C.F.R. � 1614.107(b)). Moreover, the agency shall ensure that all
relevant, as well as referenced, documents are produced and made a
part of the record in this case. The agency shall issue but one final
decision with regard to both the definition of the claims and bases of
alleged discrimination, and any dismissal of complainant's complaint.
(4) The agency shall complete all the above ordered actions, including
issuance of the final decision, within ninety (90) calendar days of the
date that this decision becomes final.
A copy of the agency's letter to complainant arranging a meeting with
an EEO Counselor, and a copy of the acceptance letter and/or FAD issued
pursuant to the above ORDER 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. 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
at 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 at 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
January 27, 2000
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 applicable), and the agency on:
___________ _____________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
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.