01985275
01-11-2000
Martha Guzenski, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Martha Guzenski v. United States Postal Service
01985275
January 11, 2000
Martha Guzenski, )
Complainant, )
)
v. ) Appeal No. 01985275
William J. Henderson, ) Agency No. 4A 088 1041-96
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On March 3, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on February 6, 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.<1>
On May 9, 1996, complainant filed a formal complaint, in which she
alleged that she was subjected to discrimination on the basis of her sex
(female) when:
She had not been reimbursed for bi-weekly health benefit payroll
deductions, which exceeded the rate that she should have paid, between
January 24, 1992, through January 8, 1994.
Complainant's complaint was dismissed on June 6, 1996, for failing to
meet the 45-day time limit to seek EEO Counseling. Complainant appealed
the agency decision and the Commission reinstated her complaint for
processing on April 28, 1997.
On December 2, 1997, complainant voluntarily withdrew her complaint
since she had received the full reimbursement for the health benefit
pay roll deductions that were in dispute. However, complainant stated
that she was not withdrawing the remainder of her complaint, which
included a request for a waiver of liability for monies not deducted
for health insurance premiums between February 1994 and March 1996 due
to an administrative error.
On February 3, 1997, the agency issued a letter closing complainant's
complaint as a withdrawal, with a right of appeal when it found that
there was no remaining issue to be decided.
Complainant filed her appeal on March 3, 1997, and claimed that the
remainder issue arose out of her initial complaint of discrimination.
Complainant contends that the remainder of her complaint is like or
related to the issue raised in her original complaint, and thus argues
that her case should proceed.
On appeal, the agency argues that the remainder is not like or related
to the issue raised in complainant's original complaint. The agency
claims that the issue in complainant's original complaint, involving
discrimination where the Office of Personnel Management (OPM) took too
much out of her benefit check to meet health premium requirements, is
the opposite of her remainder contention, that she should be excused
from reimbursing the agency for her employee share of health benefits.
The agency claims the two issues are distinct and that if complainant
wishes to pursue a claim that she was discriminated against because
the agency did not grant her an exemption from the policy requiring
reimbursement, she should consult the EEO Counselor on the new matter.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part, that an
agency shall dismiss a complaint which raises a matter that has not been
brought to the attention of an EEO Counselor, and is not like or related
to a matter on which the complainant has received counseling. A later
claim or complaint is "like or related" to the original complaint if the
later claim or complaint adds to or clarifies the original complaint and
could have reasonably been expected to grow out of the original complaint
during the investigation. See Scher v. United States Postal Service,
EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal
Service, EEOC Request No. 05891068 (March 8, 1990).
The record in the present case contains a Notice of Final Interview
dated April 22, 1996. In this letter the EEO Counselor indicates
that on January 16, 1996, complainant contacted the Counselor and
raised two claims of sex discrimination: (1) that complainant was not
reimbursed for health insurance premiums and (2) that complainant's
health insurance premiums were not being deducted from her pay check.
This letter also contains management's denial of sex discrimination
with regard to both issues. In addition, the subject matter of both
issues involve payroll deductions for complainant's health insurance.
As a result of this evidence, we find that complainant's remainder claim
was brought to the attention of an EEO Counselor during pre-complaint
counseling and is like or related to the original complaint as both
concern payment of complainant's health insurance premiums.
Accordingly, the agency's decision that the remainder of complainant's
complaint is not like or related to her original complaint is improper
and is REVERSED. The issue regarding whether complainant was subjected to
discrimination when her health insurance premiums were not being deducted
from her pay check from February 1994 through March 1996, is REMANDED 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 11, 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 Assistant
1On 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.