Shirley S. Cohens, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
01984809 (E.E.O.C. Oct. 28, 1999)

01984809

10-28-1999

Shirley S. Cohens, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Shirley S. Cohens v. United States Postal Service

01984809

October 28, 1999

Shirley S. Cohens, )

Appellant, )

)

v. ) Appeal No. 01984809

) Agency No. HI-0132-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

___________________________________)

DECISION

Appellant filed the instant appeal from the agency's decision dated

May 8, 1998, dismissing a portion of appellant's complaint for failure

to state a claim and for failure to timely contact an EEO Counselor

pursuant to 29 C.F.R. �1614.107(a) and �1614.107(b), respectively.

The agency accepted the following allegation for investigation:

Terms and conditions of complainant's employment were changed by

decreasing her responsibilities and reshuffling her area of assignment

so that she would occupy lower skilled and clerical assignments.

Although the agency treated the complaint as containing fifteen separate

allegations, the Commission finds that the complaint can be fairly read

as one complaint of harassment. The agency found, the EEO Counselor's

Inquiry Report shows, and appellant does not dispute, that appellant

initially contacted an EEO Counselor on August 8, 1997. The Commission

finds that appellant should have reasonably suspected discrimination

regarding all of the incidents that comprise the harassment complaint at

the time the incidents purportedly occurred. Therefore, the Commission

finds that all incidents of harassment occurring more than forty-five

days prior to August 8, 1997, were properly dismissed for untimely EEO

Counselor contact pursuant to �1614.107(b). The accepted allegation

should be redefined as alleging that appellant was subjected to a hostile

work environment forty-five days or less prior to August 8, 1997.

On appeal, appellant refers to various incidents which the Commission

finds are already part of the accepted allegation as defined by the

agency and as redefined by the Commission in this decision. Some of

the incidents dismissed by the agency for failure to state a claim

occurred within forty-five days of appellant's initial contact with

an EEO Counselor. These incidents, with the exception of allegation 6,

were improperly dismissed for failure to state a claim, because of our

finding that the accepted allegation, combined with those incidents,

states a claim of harassment. See Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (Mar. 13, 1997).

Regarding allegation 6, the Commission finds that this allegation was

properly dismissed for failure to state a claim pursuant to �1614.107(a).

Appellant alleged that because she was not afforded equal training and

development she was not qualified to apply for the position of EAS-23

Information Systems Specialist in June 1997. Appellant's alleged lack

of training/development is contained in other incidents cited in the

complaint; appellant's non-selection is merely an alleged harm from

that lack of training/development. Appellant may not raise the lack

of training/development as two separate incidents. Appellant has not

claimed that she was discriminatorily not selected in allegation 6.

Therefore, we find that appellant was not aggrieved in allegation 6.

The agency's decision dismissing allegation 6 and all incidents

occurring more than forty-five days prior to August 8, 1997 is AFFIRMED.

The agency's decision the portion of the complaint concerning incidents

occurring forty-five days or less prior to August 8, 1997 is REVERSED and

we REMAND this portion of the complaint, as redefined by the Commission,

to the agency for further processing in accordance with this decision

and applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgement to appellant 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 (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. �l6l4.604(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 your appeal with the

Commission, until such time as the agency issues its final decision

on your complaint. 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:

10/28/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations