Linda A. Parker, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionJun 4, 2010
0120090491 (E.E.O.C. Jun. 4, 2010)

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