05990465
04-11-2000
Douglas H. Stup, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Douglas H. Stup v. United States Postal Service
05990465
April 11, 2000
Douglas H. Stup, )
Complainant, )
) Request Nos. 05990465 & 05990666
) Appeal No. 01981263 & 01981185
) Agency No. 1K-221-0150-97 &
William J. Henderson, ) 1J-221-0137-97
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION ON REQUESTS FOR RECONSIDERATION
On March 12, 1999, Douglas H. Stup (complainant) initiated a request
to the Equal Employment Opportunity Commission (EEOC) to reconsider
the decision in Stup v. USPS, EEOC Appeal No. 01981263 (January 27,
1999).<1> It could not be determined when complainant received the
previous decision. On May 3, 1999, the United States Postal Service
(agency) initiated a request to reconsider the decision in Stup v. USPS,
EEOC Appeal No. 01981185 (March 30, 1999). EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
decision where the party demonstrates that: (1) the previous decision
involved clearly erroneous interpretation of material fact or law;
or (2) the decision will have a substantial impact on the policies,
practices or operation of the agency. 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)). Complainant's request is granted. The agency's request
is denied.
The Commission finds that the aforementioned requests are suitable for
consolidation because they concern several incidents which involved the
same supervisor and occurred within a short period of time following
EEO counseling on another of his complaints. In Request No. 05990666,
the complainant alleges reprisal when during the period May 9-14, 1997
his supervisor yelled at him on three occasions, ordered complainant to
case mail at a particular work station, and on one occasion threatened
him with discipline if he did not immediately begin casing mail.
The agency dismissed the complaint for failure to state a claim. The
previous decision (Appeal No. 01981185) found that the claim that the
supervisor ordered complainant to case mail at a particular work station
whereas employees were normally permitted to choose their workstations
stated a claim. The previous decision further found that while the
remaining allegations individually did not state a claim, collectively
they stated a claim of harassment.
In its request for reconsideration, the agency argues that complainant
did not suffer any harm to a term, condition, or privilege of employment.
In Request No. 05990465, the complainant filed an EEO complaint alleging
reprisal when on May 16, 1997 his supervisor gave him a direct order
not to clock in more than two units before his scheduled reporting time,
and told him she would write him up for disobeying a direct order if he
continued doing so. The agency dismissed the complaint for failure
to state a claim and the previous decision (Appeal No. 01981263)
affirmed. Complainant's request for reconsideration referenced other
incidents occurring within the same general time period and involving
the same supervisor.
The Commission finds the claims in the consolidated complaints state
a claim of harassment. Furthermore, while individually some of the
allegations herein may not state a claim of reprisal, we find that
the acts could be construed as demonstrating an intent to deter a
reasonable person from pursuing the EEO process. Thus, the Commission
finds that the allegations contained in the consolidated complaints are
sufficient to state a claim of reprisal. Under present Commission policy,
claimed retaliatory actions which can be challenged are not restricted
to those which affect a term or condition of employment; a complainant
is protected from any discrimination which is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation;"
No. 915.003 (May 20, 1998), p. 8-15. As such, complainant's request is
granted and the agency's request is denied. The two complaints should
be consolidated for further processing as outlined in the Order below.<2>
After a review of complainant's request for reconsideration (Request
No. 05990465), the agency's request (Request No. 05990666), the previous
decisions, and the entire records, the Commission finds complainant's
request meets the criteria of 29 C.F.R. �1614.405(b), and it is the
decision of the Commission to grant complainant's request. The decision
in EEOC Appeal No. 01981263 is reversed. The agency's request for
reconsideration of Appeal No. 01981185 is denied and the decision on
Appeal No. 01981185 remains the Commission's final decision. The agency
shall comply with the Order as set forth below. There is no further
right of administrative appeal from a decision of the Commission on a
request for reconsideration.
ORDER
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 consolidate both complaints. 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 an
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).
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:
April 11, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
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
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.
2The agency is reminded of its responsibility under 64 Fed. Reg 37,661
(1999) (to be codified at 29 C.F.R. � 1614.606) to consolidate complaints
of discrimination consisting of substantially similar allegations of
discrimination for joint processing.