01993477
05-18-2000
Kathy K. Schmidt, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region) Agency.
Kathy K. Schmidt, )
Complainant, )
)
v. ) Appeal No.01993477
) Agency No.4E-852-0149-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region) )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision (FAD) dated November 24, 1998, dismissing 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> In her complaint, complainant alleged that
she was subjected to discrimination on the basis of race (caucasian),
sex (female), age(DOB 1/21/57) and retaliation (prior EEO activity) when:
on April 2, 1998, the Manager of Post Office Operations asked
inappropriate questions during an interview for the Postmaster Sacaton,
Arizona position;
on April 23, 1998, she was not selected for Postmaster, Sacaton,
Arizona;
on unspecified date(s), held to different standards than others;
on unspecified date(s), others engaged in activities detrimental to
her promotion;
on February 24, 1998, she was told that she was overqualified for the
position of Postmaster, Stanfield, Arizona, EAS-15;
on January 26, 1998, PATS award money was pulled;
in Fiscal Year 1996, she was not judged on her individual performance
on her merit evaluation;
on June 16, 1998 the Postmaster told the intervention team that her
paperwork for the Higley Postmaster position was not good enough and
on May 4, 1998, she was not selected for a final interview. She was
not interviewed for the Higley Postmaster position;
on unspecified date she was given a �Far Exceeds Merit� rating for
Fiscal Year 1997, but it was not approved by the higher level manager;
on June 5, 1998, the Officer-in-Charge yelled at her;
on June 3, 1998, she called and requested three EEO packets and was
told to combine issues;
from June 2 through September 1998, her work hours and days off were
changed;
on unspecified date(s), a less qualified male was given an
Officer-in-Charge assignment;
on unspecified date, the postmaster misrepresented finance documentation
to selection officials for the Scanton and Stanfield positions;
during June and July 1998 and ongoing, an Officer-in Charge and the
Postmaster created a hostile work environment for the complainant; and
on June 2, 1998, the Officer-in-Charge would not allow her to have a
discussion with a clerk regarding the clerk's attendance.
By FAD dated November 24, 1998 the agency dismissed claims (1), (2),
(4), (5), (6), (7), (11), (13), (14), (15), and (16) for various reasons.
From this FAD complainant now appeals.<2>
The agency dismissed claim (2) pursuant to 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. � 1614.107(a)(2)), for untimely EEO contact. The agency
dismissed claim (2) in error. The record establishes that complainant
first sought EEO counseling on June 4, 1998. The alleged discriminatory
event occurred on April 23, 1998. Accordingly, complainant's contact
occurred within the forty-five (45) day limitation period. We find that
the agency improperly dismissed claim (2).
Since we find that the agency improperly dismissed claim (2), we remand
this improperly dismissed claim, along with the other claims dismissed by
the agency's November 24, 1998 FAD. In so doing we note that, pursuant
to the provisions of 29 C.F.R. � 1614.107(b), �[w]here the agency
believes that some but not all of the claims in a complaint should be
dismissed for the reasons contained in [29 C.F.R. � 1614.107(a)], the
agency shall notify the complainant in writing of its determination,
the rationale for that determination and that those claims will not be
investigated, and shall place a copy of the notice in the investigative
file.� Complainant is advised that the agency's determination is
reviewable by an EEOC administrative judge if a hearing is requested,
but is not appealable to the Commission until final action is taken on
the remainder of the complaint. Id. See also EEOC Management Directive
(MD) 110, as revised, November 9, 1999.
CONCLUSION
Accordingly, we VACATE the agency's decision and REMAND this matter in
accordance with the following order and the applicable EEOC regulations.
ORDER (E0400)
The agency is ORDERED to process the remanded complaint 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 complaint 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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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:
May 18, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2 The agency accepted claims 3, 8, 9, 10, and 12 for investigation.
After an investigation, the agency issued a FAD, delivered to complainant
on November 25, 1999. The Commission has not received a Notice of Appeal
for these claims.