Diane Pica, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 21, 2000
01993708 (E.E.O.C. Apr. 21, 2000)

01993708

04-21-2000

Diane Pica, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Diane Pica, )

Complainant, )

)

v. ) Appeal No. 01993708

) Agency No. 4-H-330-0391-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

INTRODUCTION

On April 03, 1999, complainant filed a timely appeal with the Equal

Employment Opportunity Commission from a final agency decision 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.<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). For the following

reasons, the Commission REVERSES and REMANDS the agency's final decision.

ISSUE PRESENTED

The issue presented on appeal is whether the agency properly limited

the scope of complainant's formal EEO complaint when the complainant

failed to respond in a timely manner to the agency's inquiry regarding

the issues accepted for investigation.

BACKGROUND

Complainant, employed by the agency Letter Carrier (GS-5) at the time of

the alleged discriminatory events, filed a formal complaint on August 31,

1998, alleging that her supervisor subjected her to sexual and non-sexual

harassment. In a letter dated January 20, 1999, the agency defined the

scope of the complaint to an incident of harassment which occurred on June

9, 1998. In the letter, the agency stated that if complainant objected

to the issues as defined, then she had to provide sufficient reasons with

which to substantiate those objections within seven days after receiving

the letter. When complainant did not respond within the seven-day time

frame, the agency decided to limit the scope of the complaint to the

issues as defined in the January 20 letter. This appeal followed.

ANALYSIS AND FINDINGS

Evidence in the file confirms the agency's contention that complainant

did not respond to the January 20 letter in a timely manner. On appeal,

complainant argues that she did not respond within the seven-day time

frame because the January 20 letter was not clear regarding where

the response was supposed to be sent, and therefore, she erroneously

sent it to the wrong part of the agency. Upon examining the January

20 letter, the Commission agrees that the agency did not make clear

where the response was supposed to be sent. Also, materials in the

file indicate that complainant originally sent her response to an EEO

specialist in Washington, D.C. That specialist returned the information

to complainant and informed her that she should have sent it to the

agency's Appeal Processing Center in Memphis, TN. Within two days of

receiving the appropriate address from the EEO specialist, complainant

forwarded her response to the correct place. Complainant's good faith

effort to comply timely to the agency's request, combined with the fact

that the counselor's report and the formal complaint indicates clearly

that complainant did not intend for her claim to be limited only to

events which occurred on June 9, 1998, convinces the Commission that

the agency should not have decided to keep the issues as defined in the

January 20 letter. Additionally, we note that in the final decision

(i.e., the letter indicating that the issues would remain as defined in

the January 20 letter), the agency argued in the alternative that some of

the incidents contained in complainant's eventual response were untimely.

In making this determination, it appears that the agency looked at each

incident separately. But as we have held, an agency cannot ignore

the pattern aspect of a claims of discrimination where an analogous

theme unites the matters of which complainant complained. See, Meaney

v. Department of the Treasury, EEOC Request No. 05940169 (November 3,

1994).

CONCLUSION

Based on the foregoing, the Commission holds that the agency's decision to

limit the complainant's formal EEO complaint to those issues defined in

the January 20 letter was not appropriate and is, therefore, REVERSED.

Consequently, the complaint is REMANDED to the agency for further

processing in accordance with this decision and applicable regulations.

ORDER (E0400)

The agency is ORDERED to process the remanded claims 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 the remanded claims 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 (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:

April 21, 2000

______________________ ____________________________

Date Carlton 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 Employment Opportunity Assistant

FOR OFO INTERNAL CIRCULATION ONLY

FOR PROCEDURAL CASES

TO: CARLTON M. HADDEN, ACTING DIR.

OFFICE OF FEDERAL OPERATIONS

APPEAL NUMBER:

01993708

AGENCY NUMBER:

4-H-330-0391-98

(APPROVED) (DATE)

REQUEST NUMBER:

HEARING NUMBER:

THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:

TITLE

NAMES

INITIAL

DATE REVIEWED

(ATTORNEY):

Oscar M. Holloway, II

April 18, 2000

(SUPERVISOR:

Mary Jean Moore

(DIVISION DIRECTOR):

Marie Fitzgerald

1.) (COMPLAINANT(S)

Diane Pica

2.) (AGENCY)

US Postal Service

3.) (DECISION)

REVERSED and REMANDED

4.) (STATUTE(S)

Title VII

5.) (BASIS(ES)

RW, OC, GF

6.) (ISSUE(S)

H1, S4

7.) (TYPIST/DATE/DISK)

oh0/4-18-00/p:x folder/ April 18, 2000

SPELL CHECK:

YES

(PLEASE CHECK ALL APPLICABLE CODES)

PROCEDURAL CODES

LETTER CLOSURE CODES

X 3K - PROCEDURAL DECISION

? 3N - APPEAL DENIED/DISMISSED

? 3P - ADVERSE INFERENCE RAISED

? 4H - OFO AFFIRMED FAD

? 3M - OFO REVERSED AND REMANDED

? 4J - OFO MODIFIED FAD

? 3L - OFO VACATED/REMANDED ALL OF

AGENCY'S MERITS DECISION

? 4Q - COMPLIANCE REQUIRED

? 3B - FAD RESCINDED

? 3C - DUPLICATE DOCKET NUMBER

? 3D - WITHDRAWAL

? 3E - COMPLAINT SETTLED

? 3G - OTHER LETTER CLOSURE

? 3R - RETURN TO AG FOR CONSOLIDATION

? 3S - RETURN TO AJ FOR CONSOLIDATION

? 7N - CIVIL ACTION FILED

[REVISED AS OF 2/3/00]

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.