Loretta Adeseye, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 12, 2000
01985292 (E.E.O.C. Jan. 12, 2000)

01985292

01-12-2000

Loretta Adeseye, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Loretta Adeseye, )

Complainant, )

)

v. ) Appeal No. 01985292

William J. Henderson, ) Agency No. 4E-890-0026-98

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On June 23, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by her on May 27, 1998,

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. 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 and harassment on the

bases of race (black), sex (female), physical disability (carpal tunnel

syndrome/cervical and bilateral shoulder strain), and mental disability

(stress) when:

On October 2, 1997, complainant was sent for a fitness for duty

examination;

On September 11, 1997, complainant received a mid-year performance

review; and

Complainant was rated �good� on her merit evaluation for 1996, and

various issues

which transpired between the time period of 1993 through September

1997.

The agency dismissed complainant's complaint on the grounds that it

states the same claims that are pending before or have been decided by

the agency or Commission. Specifically, the agency relies on the EEO

Counselor's report which the agency argues indicates that complainant

alleged discrimination concerning the identical issues in EEO Case

No. 4E-890-0004-98, as in her present case. The agency states that

complainant requested counseling concerning the identical matters on

September 16, 1997, and received her Notice of Right to File on November

7, 1997; however, complainant never filed a formal complaint pursuant to

that notice. The agency contends that complainant requested counseling

on December 29, 1997, raising most of the same issues previously raised

in EEO Case No. 4E-890-0004-98. The agency argues that since the issues

in the present complaint are identical to those previously raised with

an EEO Counselor, complainant's current complaint should be dismissed.

The record indicates that complainant alleged discrimination in EEO Case

No. 4E-890-0004-98 on the bases of race (black), sex (female), physical

disability (carpal tunnel syndrome), mental disability (stress), and

in retaliation for prior EEO activity when: (1) on September 11, 1997,

complainant received a mid-year performance review; (2) complainant was

referred to as a �cheater� on an unspecified date prior to October 3,

1997; (3) complainant did not receive an ergonomic chair as of September

3, 1997; and (4) complainant's medical documentation was challenged and

she was charged leave without pay (LWOP) between June 1997 and September

1997. The record also indicates that complainant received her Notice

of Right to File on November 7, 1997; however, there is no evidence that

complainant ever filed a formal complaint pursuant to that notice.

On appeal, complainant argues that she should be excused from failing

to file a formal complaint due to the fact that she was under stress

and strain from working within a hostile workplace. Complainant submits

medical documentation from a psychiatrist showing that she suffered from

an Anxiety Disorder near the deadline for filing a formal complaint in

EEO Case No. 4E-890-0004-98.

EEOC Regulations provide for the dismissal of a complaint that states

the same claim pending before or decided by the agency or Commission.

See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified as and

hereinafter referred to as 29 C.F.R. �1614.107(a)(1)). Upon review,

we find that only issue (2) was raised in the prior EEO counseling for

EEO Case No. 4E-890-004-98. Consequently, the dismissal of issues (1)

and (3) was clearly improper since they were not previously raised.

Furthermore, with regard to issue (2), complainant did not file a prior

formal complaint regarding this same matter. Accordingly, the agency's

dismissal of issue (2) of the present complaint for alleging the same

matter raised in a prior complaint of discrimination was also improper.

Accordingly, the agency's decision to dismiss complainant's complaint

was improper, and is hereby REVERSED. The complaint is REMANDED to the

agency for further processing in accordance with this decision and the

Order below.

ORDER (E1199)

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 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).

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:

January 12, 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.