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.