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.