0120091938
06-10-2010
Shalana T. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Shalana T. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120091938
Agency No. 4C-190-0068-08
DECISION
On February 13, 2009, complainant contacted the Hearings Unit of the Commission's Philadelphia District Office to request assistance in getting her case reopened. In response, she was advised by letter to contact the agency, and if she was not satisfied with its response, to file an appeal with this Office. On March 31, 2009, complainant submitted an appeal concerning her formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. On appeal, complainant insists that she never intended to withdraw her formal complaint of discrimination and requests that we order the agency to reopen and continue its processing. The Commission exercises its discretion to accept the instant appeal.1
Upon review of the record, we find the following facts: On June 24, 2008, complainant filed a formal complaint alleging that she was discriminated against on the bases of race and sex when:
1. On or about February 16, 2008, complainant learned that an unqualified applicant had been accepted into the Associate Supervisor Program although complainant had previously been rejected for being unqualified;
2. On March 26, 2008, complainant was issued a fourteen day suspension; and
3. On April 13, 2008, complainant was denied overtime opportunities.
The formal complaint was accepted for investigation, and complainant submitted a twenty-two page affidavit dated August 14, 2008, in support of her claims. Complainant signed and dated each page of the affidavit's Continuation Sheets (PS Forms 2568-A). Attached to the affidavit's Certification (PS Form 2571) was PS Form 2564-C, Withdrawal of Complaint of Discrimination. Complainant signed and dated this form in a manner identical to the way she signed the Continuation Sheets.
On September 11, 2008, in response to complainant's request for counseling for two additional allegations, the agency issued an Acknowledgement and Dismissal of Amendment, wherein it decided that the two additional claims were like or related to the claims raised in the June 24, 2008 complaint. Thus, the agency amended Agency Complaint No. 4C-190-0068-08 to include the following claims on the bases of race, sex and reprisal:
4. On July 23, 2008, complainant learned that another employee had been permitted to work as an Acting Supervisor; and
5. On August 1, 2008 complainant learned that another employee had committed fraud and was not fired as complainant had been in 2007.2
Then, the agency dismissed the claims pursuant to 29 C.F.R. � 1614.107(a)(1) and informed complainant that she could not appeal the dismissal until the agency took final action on the formal complaint.
Although it is not entirely clear what happened next, at some point between September 11, 2008 and February 13, 2009, complainant learned that the agency, based on her signing of PS Form 2564-C, as noted above, considered the formal complaint withdrawn and ceased its processing. In response to this appeal, the same agency official who issued the Acknowledgement and Dismissal of Amendment urges the Commission to deny this appeal based on complainant's signature on PS Form 2564-C.
Upon further review of the record, we conclude that complainant inadvertently signed PS Form 2564-C when she was completing her affidavit and diligently signing the Continuation Sheets consistent with instructions provided by the agency. It is clear based on the thoroughness of her simultaneously signed affidavit that she did not intend to withdraw her formal complaint. We find the agency's request that we deny this appeal disingenuous in light of its September 11, 2008 Acknowledgement and Dismissal of Amendment, issued more than three weeks after complainant's alleged withdrawal. Had the agency truly believed complainant had intentionally withdrawn her complaint, it would not have: (1) amended it; or (2) indicated that complainant could not appeal the dismissal until it took final action. This matter is therefore REMANDED to the agency for further processing in accordance with the ORDER below.
ORDER
The agency is ordered to reinstate Agency Complaint No. 4C-190-0068-08 and commence processing at the point where it ceased. The agency shall acknowledge to complainant that the case is being re-opened within thirty (30) calendar days of the date this decision becomes final. If the investigation is already complete, then 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 notify her of her appropriate rights, including her right to request a hearing. 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 a 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 (K0408)
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) (1994 & Supp. IV 1999). 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 (M1208)
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 77960, Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 10, 2010
__________________
Date
1 Complainant has a right to request a hearing any time after 180 days have elapsed from the filing of the complaint. 29 C.F.R. � 1614.108(g).
2 Complainant was returned to work via the grievance process.
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0120091938
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091938