Deborah J. Hamberger, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01986183 (E.E.O.C. Nov. 8, 1999)

01986183

11-08-1999

Deborah J. Hamberger, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Deborah J. Hamberger v. United States Postal Service

01986183

November 8, 1999

Deborah J. Hamberger, )

Appellant, )

)

v. ) Appeal No. 01986183

) Agency No. 4-H-320-0149-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

_________________________________)

DECISION

Appellant filed the instant appeal from the agency's decision dated July

7, 1998 dismissing two allegations raised in appellant's complaint for

failure to timely contact an EEO Counselor and one allegation for failure

to state a claim.

The agency defined the complaint as alleging that:

On October 28, 1997 appellant met with a manager on concerns about sexual

harassment.

On October 31, 1997 appellant's husband called the manager and the

manager never returned the husband's telephone call.

On February 19, 1998 the results of an EAP survey was done while an EEO

investigation was being held.

The agency dismissed allegations 1 and 2 for untimely EEO Counselor

contact pursuant to 29 C.F.R. �1614.107(b) and dismissed allegation 3

for failing to state a claim pursuant to �1614.107(a).

The Commission finds that the agency has misdefined the complaint.

The complaint should be viewed as one claim of harassment. In allegation

3, appellant claimed that a person from EAP announced to the office

that the office was a "Happy Office" and noted that a few employees had

"emotional problems." Appellant stated that she was out of the office at

the time suffering from depression and stress from the work environment.

The agency correctly found that such an allegation by itself does not

state a claim. The Commission finds, however, that such an allegation

should be considered as part of the harassment claim.

The agency found, and the EEO Counselor's report shows, that appellant

initially contacted an EEO Counselor on March 16, 1998, which was

beyond the 45 day deadline for contacting an EEO Counselor. On appeal,

appellant argues that on some unspecified date she contacted EEO

Counselor A about filing the instant complaint, but that EEO Counselor

A "stated she didn't think you could file against upper management."

The agency has not addressed appellant's argument that she was improperly

discouraged from pursuing her complaint by EEO Counselor A. Therefore,

the Commission shall remand the matter so that the agency can obtain

an affidavit from EEO Counselor A addressing appellant's claim that EEO

Counselor A misled appellant about her EEO rights.

The agency's decision dismissing the complaint is VACATED and we REMAND

the complaint to the agency for further processing in accordance with

this decision and applicable regulations.

ORDER

The agency shall supplement the record with an affidavit from EEO

Counselor A addressing appellant's claim that EEO Counselor A misled

appellant about her EEO rights. The agency shall then reconsider whether

the complaint should be dismissed for untimely EEO Counselor contact.

Within 60 days of the date this decision becomes final the agency shall

issue a letter to appellant accepting the complaint for investigation

or issue a new decision dismissing the complaint. A copy of the letter

accepting the complaint or new decision dismissing the complaint shall

be sent to the Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).

If the appellant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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:

11/08/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations