Marianne Costello,) Appellant,) v.) William J. Henderson,) Postmaster General,) United States Postal Service,) Agency.)

Equal Employment Opportunity CommissionSep 30, 1999
05980845 (E.E.O.C. Sep. 30, 1999)

05980845

09-30-1999

Marianne Costello,) Appellant,) v.) William J. Henderson,) Postmaster General,) United States Postal Service,) Agency.)


Marianne Costello,)

Appellant,)

)

v.) Request No. 05980845

) Appeal No. 01965397

William J. Henderson,) Agency No. 4-B-028-1072-94

Postmaster General,)

United States Postal Service,)

Agency.)

)

DENIAL OF REQUEST FOR RECONSIDERATION

On June 8, 1998, the United States Postal Service (agency) timely

initiated a request to the Equal Employment Opportunity Commission

(EEOC or Commission) to reconsider the decision in Marianne Costello v.

United States Postal Service, EEOC Appeal No. 01965397 (May 15, 1998).

EEOC regulations provide that the Commissioners may, in their discretion,

reconsider any previous Commission decision. 29 C.F.R. �1614.407(a).

The party requesting reconsideration must submit written argument

or evidence which tends to establish one or more of the following

three criteria: new and material evidence is available that was

not readily available when the previous decision was issued, 29

C.F.R. �1614.407(c)(1); the previous decision involved an erroneous

interpretation of law, regulation, or material fact, or misapplication of

established policy, 29 C.F.R. �1614.407(c)(2); or the previous decision

is of such exceptional nature as to have substantial precedential

implications, 29 C.F.R. �1614.407(c)(3).

The previous decision adopted the recommended decision of the EEOC

administrative judge (AJ). The AJ found that appellant had not

established that the agency discriminated against her on the basis of sex

by creating a hostile work environment as alleged. The AJ further found,

however, that appellant had established that the agency discriminated

against her on the basis of reprisal when she was reassigned from her

position as a Part-Time Distribution Clerk at the Wayland Square station

to a position as a Part-Time Distribution Clerk at the East Side Station.

The previous decision ordered the agency to offer appellant reassignment

to the Wayland Square Station; to provide EEO training to the responsible

agency officials; to �consider,� i.e., investigate, appellant's claim

for compensatory damages; to pay appellant's reasonable attorney fees

and costs; and to post a notice of the finding of discrimination.

In its request for reconsideration, the agency argues that the previous

decision contained an error of law, in that appellant had not shown

that she was disadvantaged by being reassigned from the Wayland Square

Station to the East Side Station, and therefore had not established

a prima facie case of reprisal discrimination. The agency notes that

both the Wayland Square Station and the East Side Station are part of

the Providence, Rhode Island, Post Office, and that because appellant

was merely reassigned �from one station to another within the same city

and to the same position,� she was not subject to an �adverse action.�

In her reply and cross-request for reconsideration, appellant argues

that a change in her work location does, in fact, negatively affect a

�term, condition, or privilege� of her employment so as to constitute

an adverse action. Appellant detailed the differences in her working

conditions after her reassignment, noting, inter alia, that her new

assignment was in a completely separate facility in another part of

the city, and involved a loss of autonomy in carrying out her duties.

Appellant further argues that she is entitled to relief beyond that

ordered in the previous decision, noting that she had stopped work on

account of the effects of the alleged harassment, and that the Office of

Workers' Compensation Programs had accepted her claim for Anxiety Disorder

related to the alleged harassment. Appellant noted that the Wayland

Square Station has been closed, and requested that the agency be required

to offer her assignment to another facility within her local commuting

area with the proviso that the Responsible Management Official 1 (RMO 1),

her former supervisor, would not be her supervisor in her new assignment.

Regarding the agency's request for reconsideration, the Commission

has held that an involuntary reassignment without loss of grade or pay

nonetheless constitutes an adverse action. E.g., Neglia v. U.S. Postal

Service, EEOC Appeal No. 01933082 (July 15, 1994). The agency's argument

therefore is without merit; its request meets none of the criteria for

reconsideration, and so is DENIED.

Regarding appellant's cross-request, the Commission notes that the

previous decision found discrimination only with regard to appellant's

reassignment to the East Side Station. The record reflects that appellant

stopped work on account of the effects of her interactions with RMO 1,

most immediately on account of a letter placing appellant on restricted

sick leave. Because there has been no finding of discrimination with

regard to the alleged harassment by RMO 1, it is not appropriate for the

Commission to order any remedy in connection therewith. Appellant's

request meets none of the criteria for reconsideration, and therefore

is DENIED. However, given that the Wayland Square Station has closed

during the pendency of these proceedings, the Commission will order the

agency to offer appellant reassignment to a facility of her choice within

her local commuting area.<1>

Upon review of the agency's request for reconsideration, the previous

decision, and the entire record, the Commission finds that neither the

agency's request nor appellant's request meets any of the criteria of

29 C.F.R. �1614.407(c). Accordingly, the requests for reconsideration

are DENIED. The decision in Appeal No. 01965397 remains the Commission's

final decision. There is no further right of administrative appeal from

the decision of the Commission on this request for reconsideration.

ORDER

The agency is ORDERED to take the following remedial action:

(1) Within sixty (60) days of the date on which this decision becomes

final, the agency shall offer appellant the opportunity to resume her

prior position with the agency at the facility of her choice within

her local commuting area, and not under the supervision of her former

supervisor.

(2) The agency shall provide appropriate EEO training for the alleged

responsible officials if it has not already done so.

In accordance with the instructions of the AJ, the agency shall consider

appellant's claim for compensatory damages incurred as a result of

the agency's discriminatory actions. Within fifteen (15) days of the

date this decision becomes final, the agency shall notify appellant

of her right to present evidence to the agency regarding her claim for

compensatory damages. Appellant shall provide objective evidence that

the damages in question were a result of the agency's discrimination and

of the amount of the claimed damages. Within forty-five (45) days of

the submission of such evidence, the agency shall issue a final agency

decision on this issue, with appropriate appeal rights to the Commission.

The Commission further orders that the agency consider appellant's right

to any additional attorney fees and costs in connection with her claim

for compensatory damages.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Providence, Rhode Island, Main Post

Office copies of the attached notice. Copies of the notice, after being

signed by the agency's duly authorized representative, shall be posted

by the agency within thirty (30) calendar days of the date this decision

becomes final, and shall remain posted for sixty (60) consecutive days,

in conspicuous places, including all places where notices to employees are

customarily posted. The agency shall take reasonable steps to ensure that

said notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

ATTORNEY'S FEES (H1092)

If appellant has been represented by an attorney (as defined by

29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. �1614.501.

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

appellant. If the agency does not comply with the Commission's order,

appellant may petition the Commission for enforcement of the order.

29 C.F.R. �1614.503 (a). 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, 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(c) (Supp. V 1993). If 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.

RIGHT TO FILE A CIVIL ACTION (R0993)

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 an action in an appropriate

United States District Court. 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 EIGHTY (180)

CALENDARS 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 (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:

September 30, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated which found that

a violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., has occurred at this facility.

Federal law requires that there be no discrimination against any

employee or applicant for employment because of that person's RACE,

COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL

DISABILITY with respect to hiring, firing, promotion, compensation,

or other terms, conditions, or privileges of employment.

The United States Postal Service, Providence, Rhode Island, Post Office

supports and will comply with such Federal law and will not take action

against individuals because they have exercised their rights under law.

The United States Postal Service, Providence, Rhode Island, Post

Office has been found to have discriminated against the individual

affected by the Commission's finding. The United States Postal Service,

Providence, Rhode Island, Post Office shall offer the affected individual

reassignment to the facility of her choice within her local commuting

area, and shall pay the affected individual's proven compensatory

damages and reasonable attorney fees and costs. The United States

Postal Service, Providence, Rhode Island, Post Office will ensure that

officials responsible for personnel decisions and terms and conditions

of employment will abide by the requirements of all Federal equal

employment opportunity laws and will not retaliate against employees

who file EEO complaints.

The United States Postal Service, Providence, Rhode Island, Post Office

will not in any manner restrain, interfere, coerce, or retaliate against

any individual who exercises his or her right to oppose practices made

unlawful by, or who participates in proceedings pursuant to, Federal

equal employment opportunity law.

_________________________

Date Posted: ____________________

Posting Expires: _________________

29 C.F.R. Part 1614

1Further, because the Wayland Square Station has been closed, the

Commission will direct the agency to post the notice of the finding of

discrimination at the Providence Main Post Office instead.