01973791
06-04-1999
Lori A. Alexander, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lori A. Alexander v. United States Postal Service
01973791
June 4, 1999
Lori A. Alexander, )
Appellant, )
)
v. ) Appeal No. 01973791
) Agency No. 4C-080-0001-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated March 10, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a) and (b). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision represented that the appellant's October 12,
1996 complaint raised four specific allegations and one "continuing
violation" allegation. The decision accepted allegations 1, 3, and 4
for investigation. The accepted allegations concerned allegedly
discriminatory actions in May 1996. The decision dismissed allegation 2
on the ground that it failed to state a claim of employment
discrimination. The decision also dismissed the appellant's "continuing
violation" allegation on the ground that the appellant had provided a
history of alleged stress-related illness since January 1996, but she
had not "shown" a pattern of allegedly discriminatory activity dating
back to January 1996. Finally, the decision dismissed retaliation as a
basis for the alleged discrimination because, according to the decision,
the appellant had not had any prior EEO activity.
After reviewing the entire record, including the appeal submissions of
the parties, it is the decision of the Commission to affirm the agency
decision in part and to reverse the agency decision in part.
Specifically, the Commission finds that the agency erred in
dismissing retaliation as a basis for the appellant's allegations.
In finding that the appellant did not have any prior EEO activity,
the agency erroneously based its procedural dismissal on its view of
the merits of the appellant's allegations. The Commission repeatedly
has reversed agencies' dismissals for failure to state a claim where
the agency based the dismissal on its view of the ultimate merit of
the complaint allegations. See, e.g., Franz v. Treasury, EEOC Request
No. 05950734 (April 29, 1996) (agency's argument that the complainant
was not disparately treated went to the merit of his claim); Ernst
v. Treasury, EEOC Request No. 05950131 (March 7, 1996) (the agency's
argument that the denied detail was to a lower-grade position with fewer
responsibilities and less opportunities for promotion went to the merits
of the complaint); Hagan v. Department of Veterans Affairs, EEOC Request
No. 05920709 (January 7, 1993) (agency wrongfully dismissed allegation
of disparate treatment in the payment of licensing fees based on the
ground that the agency could not pay an employee's licensing fees); Cann
v. United States Postal Service, EEOC Request No. 05920861 (December 31,
1992) (agency wrongfully dismissed allegation that the agency failed
to upgrade an employee to full-time regular status on the ground that
there were no full time positions available to him under the terms of
the collective bargaining agreement); and Ferns v. Department of the
Army, EEOC Request No. 05920597 (September 10, 1992) (agency's argument
that the complainant was ineligible for position goes to the merits of
the complaint). In any event, the record indicates that the appellant
had prior EEO activity in that she is alleging that the agency treated
her adversely because she refused to drop her informal EEO complaint
upon the request of an agency official.
The Commission also finds that "allegation" 2, while not stating
an independent claim of discrimination, appears to be inextricably
intertwined with allegation 3 which the agency accepted for investigation.
Therefore, the agency should seek evidence about the event described in
"allegation" 2 during its investigation of allegation 3.
As to the appellant's "continuing violation" claim, the Commission
finds that the appellant has identified only one specific act of alleged
discriminatory harassment prior to May 1996, i.e., the agency's initial
refusal to send the appellant Family and Medical Leave Act forms on
January 30, 1996. The appellant acknowledges, however, that the agency
sent her the forms the next day and granted her the requested leave
without pay until she was cleared for return to work on April 15, 1996.
The appellant also indicated that she had experienced panic attacks while
casing mail on January 4, 1996, and January 22, 1996. However, she did
not allege that any discriminatory action of the agency precipitated
the attacks. Accordingly, the Commission finds that the appellant
has not stated a harassment/hostile work environment claim for the
period of time, beginning January 4, 1996 and continuing to May 1996.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (harassment
is actionable if it is sufficiently severe or pervasive to alter the
conditions of the complainant's employment); and Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997) (same).
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's "continuing violation" allegation; MODIFIES
the agency's dismissal of "allegation" 2 to require investigation of
"allegation" 2 as inextricably intertwined with allegation 3; REVERSES
the agency's dismissal of retaliation as a basis for the agency's actions;
and REMANDS the complaint to the agency for processing as ORDERED below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 4, 1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations