0120090491
06-04-2010
Linda A. Parker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Linda A. Parker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120090491
Agency No. 4H-300-0235-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 4, 2008, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following
reasons, the Commission REVERSES the agency's final decision.
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed complainant's
EEO complaint for failure to cooperate in the EEO process.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Supervisor, Customer Services, at the agency's Riverdale, Georgia
Post Office. Formal Complaint, at 1.
According to the record, complainant contacted an EEO Counselor on May 13,
2008, and subsequently filed a formal complaint on July 12, 2008. Id.;
EEO Counselor's Report, at 1. In her complaint, complainant alleged that
she was subjected to discrimination on the bases of race (Black), national
origin (New Yorker1), sex (female), color (dark brown), disability
(depression), age (52), and reprisal (instant complaint). The agency
defined complainant's complaint as encompassing the following claims2:
1. since December 20073 and continuing, she was subjected to a hostile
work environment;4
2. on October 20, 2007, she was instructed to utilize the time clock;
3. on November 8, 2007, she was issued a proposed Letter of Warning;
4. on February 2, 2008, she was issued a proposed Letter of Warning
In Lieu of 7-Day Suspension and subsequently, on February 22, 2008,
she was issued a Letter of Decision, upholding the 7-Day Suspension;
5. on March 29, 2008, she was issued a Letter of Warning In Lieu of
14-Day Suspension;
6. on April 28, 2008, the Acting Station Manager (Manager) cancelled
her mediation and instructed her to ride a route;
7. on April 28, 2008, her leave was denied and she was sent home;
8. on April 29, 2008, the Manager wrote a Letter of Concern to the
Manager, Post Office Operations (MPOO) that defamed her character;
9. on May 8, 2008, she was sent an Official Directive Reassignment order;
10. on an unspecified date, the MPOO denied her requests for
Officer-in-Charge positions; and
11. on an unspecified date, the MPOO changed her performance rating.
The agency dismissed complainant's entire complaint for failure to
provide relevant information pursuant to 29 C.F.R. � 1614.107(a)(7).
Agency's November 4, 2008 Decision (FAD), at 3. The agency found
that complainant failed to cooperate and that there was insufficient
information in the record to adjudicate the complaint. Id. Specifically,
the agency found that complainant had received an affidavit package
from the EEO Investigator on August 29, 2008, but failed to submit her
affidavit response within 15 calendar days of receipt of the package.
Id. In addition, the agency found that it had fully satisfied its
obligation of informing complainant of her responsibility to return her
affidavit response when complainant received the following documents:
(a) a notice of the proposed dismissal in her affidavit package,
(b) PS Form 2568-A, EEO Investigative Affidavit (Complainant) in her
affidavit package, and (c) "What You Need to Know About EEO" Publication
133 from the EEO Counselor on May 20, 2008. Id. at 2-3. Further,
the agency found that there was nothing in the record to establish that
complainant was incapacitated or otherwise prevented from submitting her
affidavit response. Id. at 2. Finally, in addition to dismissing the
entirety of complainant's complaint, the agency also dismissed several
claims individually. Id. at 7. The agency dismissed claims 2 and 3 for
untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2),
claim 3 as a proposal to take a personnel action or other preliminary
step to taking a personnel action pursuant to 29 C.F.R. � 1614.107(a)(5),
and claim 6 as dissatisfaction with the processing of a previously filed
complaint pursuant to 29 C.F.R. � 1614.107(a)(8). Id.
CONTENTIONS ON APPEAL
Complainant did not file a statement in support of her appeal. The agency
requests that the Commission affirm its final decision.
ANALYSIS AND FINDINGS
Dismissal of Complaint (Claims 1 through 11) - Failure to Cooperate
The regulation set forth at 29 C.F.R. � 1614.107(a)(7), in pertinent part,
authorizes dismissal of a complaint where the complainant fails to respond
to a request for information or otherwise proceed with a complaint within
15 days of receipt of the agency's request, provided that the request
included a notice of the proposed dismissal. The regulation further
provides that, instead of dismissing for failure to cooperate, the
complaint may be adjudicated if sufficient information for that purpose
is available. The Commission has held that as a general rule, an agency
should not dismiss a complaint when it has sufficient information on which
to base adjudication. See Ross v. United States Postal Service, EEOC
Request No. 05900693 (August 17, 1990). It is only in cases where the
complainant has engaged in delay or contumacious conduct and the record
is insufficient to permit adjudication that the Commission has allowed a
complaint to be dismissed for failure to cooperate. See Card v. United
States Postal Service, EEOC Request No. 05970095 (April 23, 1998).
In the instant case, we find that there is insufficient evidence to
support a conclusion that complainant purposely engaged in delay or
contumacious conduct. The record contains complainant's September 5, 2008
handwritten letter received by the agency. Miscellaneous Correspondence,
at 2. Therein, complainant requested a 20-day extension to respond to
the agency's affidavit request because she was on a team working up to
12 hours a day, 6 days a week and the affidavit contained 172 questions.
Id. Along with her handwritten letter, complainant submitted a signed
PS Form 2565-C, Agreement to Extend 180-Day EEO Investigative Process
dated September 5, 2008. Id. at 1. There is no evidence in the record
that the agency responded to complainant's extension request or that
the agency made an attempt to follow up on its first request, before
summarily dismissing the formal complaint.
In addition, we find that there was sufficient information in the record
for the agency to have continued the investigation without complainant's
affidavit and adjudicated the complaint on the merits. A review of
the record indicates that complainant provided extensive information
in her formal complaint and to the EEO Counselor, including a two-page
typed statement, a three-page handwritten statement, and documentation
regarding the alleged management actions. Formal Complaint, at 2-3, 6-8,
13-14; EEO Counselor's Report, at 3, 13-15, 18-19, 22-24. The information
complainant provided was sufficient to identify the specific management
actions, the relevant timeframes, and the responsible management
officials. This is sufficient information to permit management witnesses
to respond to complainant's allegations. See Hearl v. United States
Postal Service, EEOC Appeal No. 0120082505 (July 28, 2008). In this
case, the agency completed a substantial portion of the investigation;
the record of investigation includes affidavits from three management
officials and 22 exhibits. See Affidavits B-D; Exhibits 1-22.
Based on the record and the above criteria, we find that the agency
improperly dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(7).
Claim 1 - Harassment
We find that the agency mischaracterized complainant's claim of
harassment. Although the agency identified complainant's claim
of harassment as separate from claims 2 through 11, we find that
complainant's claim of harassment encompasses claims 2 through 11.
Complainant stated in her formal complaint, "My Postmaster ... devised
a plan of action to harass me causing a hostile work environment and
using punitive acts of discipline ..." In addition, the Information for
Pre-Complaint Counseling, Notice of Right to File, and EEO Counselor's
Report clearly show that complainant alleged that the management
actions identified in claims 2 through 11 were a form of harassment.
EEO Counselor's Report, at 1, 3, 10-15, 25.
Dismissal of Claims 2 through 3 - Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,
that the agency shall dismiss a complaint or a portion of a complaint that
fails to comply with the applicable time limits contained in 29 C.F.R. �
1614.105, unless the agency extends the time limits in accordance with
29 C.F.R. � 1614.604(c). An aggrieved person must seek EEO counseling
within 45 days of the date of the alleged discriminatory action, or in
the case of a personnel action, within 45 days of the effective date
of the action. 29 C.F.R. � 1614.105(a)(1). The Supreme Court has
held that a complainant alleging a hostile work environment will not
be time barred if all acts constituting the claim are part of the same
unlawful practice and at least one act falls within the filing period. See
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002).
The Court further held, however, that "discrete discriminatory acts are
not actionable if time barred, even when they are related to acts alleged
in timely filed charges." Id. Nonetheless, the Court held that such
untimely discrete acts may be used as background evidence in support of
a timely claim. Id.
In its final decision, the agency found that claims 2 and 3 were
discrete acts which complainant failed to raise in a timely fashion.
FAD, at 7. The record shows that the discrete acts occurred in October
and November 2007, but complainant did not contact an EEO Counselor until
May 13, 2008, more than 45 days after the alleged discriminatory actions.
EEO Counselor's Report, at 1. As explained above, however, complainant's
claim of harassment encompasses claims 2 and 3. Therefore, we
find that, under the principles established in Morgan, the agency
should consider these incidents as background evidence in support of
complainant's claim of harassment.
Dismissal of Claim 6 - Dissatisfaction with the Processing of a Previously
Filed Complaint
The regulation set forth at 29 C.F.R. � 1614.107(a)(8) provides,
in relevant part, that an agency shall dismiss claims alleging
dissatisfaction with the processing of a prior complaint. In the instant
case, we find that there is no evidence in the record that complainant
is alleging dissatisfaction with the processing of a prior complaint
or of the instant complaint, or that the mediation in question even
concerns the processing of an EEO complaint.5 Instead, it appears that
complainant is alleging that the Manager's April 28, 2008 cancellation of
her mediation was another form of harassment. Formal Complaint, at 6-7.
As such, we find that the agency improperly dismissed complainant's
claim pursuant to 29 C.F.R. � 1614.107(a)(8).
CONCLUSION
Based on a thorough review of the record, the Commission REVERSES
the final agency decision and REMANDS the case for further processing
consistent with this decision and the Order below.
ORDER
The agency is ORDERED to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to 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 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 a notice
of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 4, 2010
Date
1 We note that the term "national origin" does not apply to an
individual's state affiliation. The agency should clarify whether
complainant intended to allege discrimination based on her national
origin of United States.
2 In its final decision, the agency stated that complainant raised
the identified claims during counseling, but that complainant failed
to include one or more of the claims (the agency failed to specify
which ones) in her formal complaint. FAD, at 1. After a review of
complainant's formal complaint, including her May 20, 2008 narrative
statement and supporting documentation, it appears that complainant
included claims 1 through 11 as part of her formal complaint. Formal
Complaint, at 1-3, 6-8, 11, 13-14.
3 The December 2007 date for claim 1 appears to be incorrect. The record
reflects that complainant alleged that the harassment began in October
2007, when she was instructed to utilize the time clock. EEO Counselor's
Report, at 1.
4 In its investigation, the agency included the following alleged
incidents as part of claim 1: (a) complainant was required to use a
time badge, (b) complainant was assigned to perform 80 percent of the
administrative duties in the office, (c) the Manager stood behind
complainant with a pad while she was working, and (d) the Manager
confronted complainant in front of others. Affidavit B, at 26-34.
5 The April 28, 2008 cancellation of complainant's mediation pre-dates
complainant's May 13, 2008 contact with an EEO Counselor in the instant
complaint. EEO Counselor's Report, at 1. It appears from the record
that the mediation may relate to a disciplinary action. See Exhibit 11.
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0120090491
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090491