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.