01a01754
02-17-2000
Juanita Dixon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Juanita Dixon, )
Complainant, )
)
v. ) Appeal No. 01A01754
William J. Henderson, ) Agency No. 1E-801-0118-99
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On December 24, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her attorney
on November 29, 1999, 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. , the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. ,
and Section 501 of 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 race (Black), color
(black), sex (female), age (DOB 1/3/43), mental disability (depression),
and in reprisal for prior EEO activity when:
Complainant endured a pattern of offensive and abusive acts of work
overload, harassment, and sexual harassment from 1996 through 1998,
which resulted in her loss of employment.
The agency dismissed complainant's complaint on the grounds of untimely
EEO Counselor contact. Specifically, the agency claims that complainant
first brought the matters raised in her present complaint to the
attention of the agency on October 15, 1998, when she hand-delivered a
statement containing these matters to the EEO Office as an attachment to
a previously filed complaint, EEO Case No. 1E-801-0112-98. The agency
states that complainant had not been in a duty status since April 25,
1998, and thus, claims that complainant's counselor contact was beyond
the forty-five day time frame for timely counselor contact.
On appeal, complainant, through her attorney, requests that her present
case be consolidated with EEO Case No. 1E-801-0112-98, currently
pending before an Administrative Judge.<2> The record reveals that in
complaint 1E-801-0112-98 complainant claimed that she was subjected to
harassment, stress, and a hostile work environment when on July 14,
1998, her supervisor placed discriminatory data on her application
for disability retirement. Complainant claims that on September 23,
1998, prior to filing her formal complaint in Case No. 1E-801-0112-98,
she faxed a document in which she disclosed the supervisor's statement
made on her retirement application, as well as details of the alleged
incidents of hostile work environment harassment.<3> Complainant
states that she filed her formal complaint in Case No. 1E-801-0112-98,
on October 15, 1998, and attached a statement detailing the alleged
incidents of discrimination involved in that complaint. In addition,
complainant states that she made several requests for the agency to
amend her complaint in Case No. 0E-801-0112-98 to include the issues
described in her September 23, 1998 fax and the present complaint/appeal.
Complainant claims that the agency failed to respond to her repeated
requests to amend her complaint until after the investigation in that
case had been completed on May 10, 1999. Thus, complainant now asks
that the Commission order consolidation of these two complaints before
the Administrative Judge since they involve related issues.
Volume 64 Fed. Reg. 37, 644, 37, 656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. �1614.106(d)) provides that a
complainant may amend a complaint at any time prior to the conclusion of
the investigation to include issues or claims like or related to those
raised in the complaint. The record in this case indicates that the
investigation in Case No. 1E-801-0112-98 was not concluded until May
10, 1999. The record also indicates that complainant made two attempts
to amend her complaint, on November 30, 1998 and April 2, 1999, both
prior to the conclusion of the investigation. According to a July 28,
1999 letter, the agency informed complainant that her objections to the
agency's definition of the accepted issues had been noted but that the
issue is no longer under the agency's control since a hearing before
the AJ had been requested.
In Case No. 1E-801-0112-98, complainant alleged that she was subjected
to harassment, sexual and non-sexual, and a hostile work environment.
Whether complainant should be permitted to amend her complaint requires
an analysis of whether the new claims are �like or related� to the
original complaint. A later claim is �like or related� to the original
complaint if the later claim adds to or clarifies the original complaint
and could have reasonably been expected to grow out of the original
complaint during the investigation. See Scher v. United States Postal
Service, EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United
States Postal Service, EEOC Request No. 05891068 (March 8, 1990).
In the present case, complainant alleges that she has been subjected to
a hostile work environment and harassment, sexually and non-sexually,
from 1996 through 1998, which resulted in her loss of employment. We find
that complainant's claim that she was constructively discharged due to a
continuous campaign of harassment is sufficiently �like or related� to
her original claim of harassment and hostile work environment to allow
amendment of her original complaint.
Accordingly, the agency improperly denied complainant's request
to amend her complaint. We find that the agency was on notice of
complainant's allegations of hostile work environment harassment when
she filed her complainant, as well as by the September 23, 1998 fax
sent by complainant to the agency. Therefore, the agency's decision to
dismiss complainant's complaint was improper. The complaint is hereby
REMANDED to the agency to consolidate with complainant's prior complaint
(EEO Case No. 1E-801-0112-98) for further processing in accordance with
this decision and the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall notify the Administrative Judge conducting the hearing
on EEO Case No. 1E-801-0112-98 of the remand of the present case and
the Commission's Order to consolidate the present complaint with EEO
Case No. 1E-801-0112-98.
A copy of the agency's notice sent to the Administrative Judge 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 (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 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 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:
February 17, 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 Assistant1On 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.
2Complainant requested a hearing before an Administrative Judge in Case
No. 1E-801-0112-98 on May 26, 1999.
3 The agency contends that it did not receive this letter until
October 15, 1998, the date complainant filed her formal complaint in
Case No. 1E-801-0112-98.