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.