Mary A. O'Halloranv.United States Postal Service 01990077 November 9, 2000 . Mary A. O'Halloran, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 9, 2000
01990077 (E.E.O.C. Nov. 9, 2000)

01990077

11-09-2000

Mary A. O'Halloran v. United States Postal Service 01990077 November 9, 2000 . Mary A. O'Halloran, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Mary A. O'Halloran v. United States Postal Service

01990077

November 9, 2000

.

Mary A. O'Halloran,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01990077

Agency No. 1-D-235-0006-97

DECISION

The record indicates that complainant, a Data Conversion Operator, PS-4,

filed her complaint dated June 13, 1997, alleging discrimination based

on race (White) when from 1996 through June 6, 1997, she was denied the

opportunity to work in a higher position as a group leader. On August 15,

1997, the agency previously issued its partial dismissal of complainant's

claims, i.e., the alleged denial of the opportunity to work in a higher

position as a group leader which occurred from 1996 through February 2,

1997, due to untimely EEO Counselor contact. Complainant appealed. The

Commission, in EEOC Appeal No. 01980679 (September 10, 1998), previously,

found that the agency failed to discuss the issue of continuing violation.

Thus, the Commission vacated the agency's decision and remanded the case

back to the agency for further processing. The record indicates that

the remanded claims are pending before the agency at this time.

Meanwhile, the agency investigated the remaining portions of complainant's

claims, i.e., the alleged denial of the opportunity to work in a higher

position as a group leader which occurred from February 3, 1997 through

June 6, 1997. After completion of the investigation of the subject

claims, the agency sent a letter dated February 17, 1998, informing

complainant her right to request a hearing before an EEOC Administrative

Judge (AJ). Complainant did not request a hearing, and the agency issued

a decision dated September 1, 1998, finding no race discrimination with

regard to the subject claims. Complainant appeals from this decision.

After a review of the record, the Commission finds that the complaint

clearly involved one continuing claim which occurred from 1996 through

June 6, 1997. Since the alleged discrimination occurred continuously,

the Commission finds that the previously remanded claims are inextricably

intertwined with the remaining claims at issue. Here, the agency

investigated the remaining claims at issue, instead of holding them in

abeyance pending the appellate decision on the remanded claims, and,

then, adjudicated the merits thereof. Based on the foregoing, the

Commission finds that the agency's merit determination of the complaint

without considering all of the alleged claims occurring from 1996 through

June 6, 1997, was improper. Therefore, the agency shall complete the

investigation of the remanded claims occurring from 1996 through February

2, 1997, and inform complainant of her right to a hearing before an EEOC

AJ on the entire complaint.

Accordingly, the agency's decision is hereby VACATED, the case is REMANDED

for further processing in accordance with the Order below.

ORDER

The agency, within 30 calendar days of the date this decision becomes

final,<1> is ordered to: (1) complete the investigation of the previously

remanded claims, i.e., the alleged denial of the opportunity to work

in a higher position as a group leader which occurred from 1996 through

February 2, 1997; and (2) provide complainant with her right to a hearing

before an EEOC Administrative Judge. If complainant requests a hearing,

the agency shall refer the entire complaint (incidents from 1996 through

June 6, 1997) to an AJ. If complainant fails to request a hearing and/or

requests a final decision without a hearing, the agency shall, within

90 calendar days of the date this decision becomes final, issue a new

final decision considering all of complainant's claims in the complaint,

i.e., the alleged denial of the opportunity to work in a higher position

as a group leader which occurred from 1996 through June 6, 1997.

A copy of a letter indicating the completion of the investigation of

the previously remanded claims, including providing complainant her

right to a hearing, and, if complainant does not request a hearing,

a copy of a new final decision, must be sent to the Compliance Officer

as referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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

(R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 9, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1It is noted that since the agency had ample time to complete the

investigation of the remanded claims of the instant complaint and/or to

issue a decision concerning the matter in accordance with the Commission's

previous order, in EEOC Appeal No. 01980679 (September 10, 1998), this

30 calendar day time requirement is adequate and well justified under

the circumstances.