01990198
09-22-1999
Marvetta J. Anderson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Marvetta J. Anderson v. United States Postal Service
01990198
September 22, 1999
Marvetta J. Anderson, )
Appellant, )
)
v. ) Appeal No. 01990198
) Agency No. 1-C-191-0052-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 8, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on October 8, 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. In her complaint, appellant alleged that she
was subjected to discrimination on the bases of race (African-American)
and sex (female) when:
On February 13, 1996, the agency Medical Unit falsified medical
information regarding appellant, and, subsequently, agency management
provided false statements regarding appellant on various dates, including
February 13, 1996, February 12, 1996, and August 16, 1997;
On or about August 14, 1997, appellant's Office of Workers' Compensation
(OWCP) claim for job stress was denied due to the statements cited in
allegation (1); and
By letter dated September 29, 1997, the agency noted the Office of
Personnel Management (OPM) decision to disallow appellant's application
for disability retirement, and gave appellant three options, including
resignation; subsequently, on October 10, 1997, appellant resigned from
employment.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(b), for untimely counselor contact. Specifically,
the agency found that appellant requested counseling on December 1,
1997. With regard to allegation (3), the agency found that the date of
appellant's resignation, October 10, 1997, triggered the limitations
period. The agency also noted that to the extent that appellant was
raising matters from her complaint that dated back to 1992, these matters
also were untimely.
On appeal, appellant argues that her resignation did not become effective
until December 1, 1997. Further, appellant argues that she could not
have raised allegation (1) before she received a copy of the statements
from OWCP, in July 1996, on September 12, 1996, and on November 10,
1997, respectively. Appellant argues that the statements were untrue,
and were provided to OWCP in order to deny her disability claim.
Appellant argues that she could not "put claims together" in 1996,
because she was hospitalized, undergoing treatment for schizophrenia,
but was ultimately found to be suffering from work-related stress.
Appellant also alleges that the agency improperly processed prior and
pending complaints.
The record contains a copy of appellant's request for counseling, dated
December 1, 1997. The record does not contain, however, any information
concerning appellant's resignation.
Although the agency dismissed allegations (1) and (2) for untimely
counselor contact, the Commission finds that the allegations are more
properly analyzed for whether they state a claim. EEOC Regulation 29
C.F.R. �1614.107(a) provides, in relevant part, that an agency shall
dismiss a complaint, or portion thereof, that fails to state a claim.
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission has held that a collateral attack to the OWCP process fails
to state a claim. See Conley v. Navy, EEOC Appeal No. 05970402 (Feb. 11,
1999); Agustin v. Department of Labor, EEOC Request No. 05960127 (Dec. 19,
1996) (direct attack of manner in which OWCP personnel processed an injury
claim is a collateral attack). An attack of the merits of an OWCP claim,
or of the agency's action in representing its interests in the OWCP forum,
even by the submission of allegedly false information, does not state a
claim. See Pirozi v. Department of the Navy, EEOC Request No. 05970146
(Oct. 23, 1998); Ward v. United States Parcel Service, EEOC Request
No. 05980036 (Mar. 19, 1998).
In allegation (1), appellant attacks the truthfulness of information
provided to OWCP. In allegation (2), appellant is attacking the OWCP's
decision directly. Therefore, allegations (1) and (2) fail to state a
claim, and are dismissed pursuant to 29 C.F.R. �1614.107(a).
Regarding allegation (3), EEOC Regulation 29 C.F.R. �1614.105(a)(1)
requires that complaints of discrimination should be brought to the
attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within forty-five (45) days of the
effective date of the action. The Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to
determine when the forty-five (45) day limitation period is triggered.
See Ball v. United States Postal Service, EEOC Request No. 05880247
(July 6, 1988). Thus, the time limitation can be triggered before all
the facts that support a charge of discrimination have become apparent,
but not until a complainant reasonably suspects discrimination.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that appellant failed to contact a counselor until
December 1, 1997. Assuming that the effective date of appellant's
resignation triggers the 45-day time limitation for allegation (3), the
Commission cannot determine the timeliness of the allegation because there
is no evidence in the record indicating that date; appellant contends
that her resignation became effective December 1, 1997; the agency
indicates that appellant resigned on October 10, 1997. Where, as here,
there is an issue of timeliness, "[a]n agency always bears the burden of
obtaining sufficient information to support a reasoned determination as
to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703
(Jan. 4, 1994) (quoting Williams v. Department of Defense, EEOC Request
No. 05920506 (Aug. 25, 1992)). In addition, in Ericson v. Department
of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission
stated that the agency has the burden of providing evidence and/or proof
to support its final decisions. See Gens v. Department of Defense, EEOC
Request No. 05910837 (Jan. 31, 1992); Marshall v. Department of the Navy,
EEOC Request No. 05910685 (Sept. 6, 1991). Therefore, allegation (3)
is being remanded to the agency for a supplemental investigation.
The Commission has held that an allegation which relates to the processing
of a previously filed complaint does not state an independent allegation
of employment discrimination. See Kleinman v. United States Postal
Service, EEOC Appeal No. 05940579 (Sept. 22, 1994); Story v. United
States Postal Service, EEOC Appeal No. 01965883 (Mar. 13, 1997). If a
complainant is dissatisfied with the processing of her pending complaint,
she should be referred to the agency official responsible for the quality
of complaints processing. Agency officials should earnestly attempt
to resolve dissatisfaction with the complaints process as early and
expeditiously as possible. See EEO MD 110 (4-8). Furthermore, given
the nature of appellant's allegations of improper processing, we find
that the proper method for addressing such matters would be within the
continued processing of the previously filed complaint or on appeal from
the final agency decision issued therein. Any remedial relief to which
appellant would be entitled would necessarily involve the processing of
the underlying complaint. Consequently, the agency properly failed to
address appellant's allegations of improper processing.
CONCLUSION
Accordingly, the agency's dismissal of allegations (1) and (2) is AFFIRMED
for the reasons set forth herein. The agency's dismissal of allegation
(3) is VACATED, and allegation (3) is REMANDED for further processing.
ORDER
The agency is ORDERED to take the following actions:
Within thirty (30) calendar days of the date this decision becomes final,
conduct a supplemental investigation to determine the date on which
appellant's resignation became effective and include evidence of such
date in the present case file;
Within forty-five (45) calendar days of the date this decision becomes
final, issue a final agency decision or notice of processing regarding
allegation (3); and
Submit a copy of the new final agency decision or notice of processing
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(c) (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 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. 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:
September 22, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations