Vera F. Sturgis, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05981173 (E.E.O.C. Nov. 4, 1999)

05981173

11-04-1999

Vera F. Sturgis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Vera F. Sturgis v. United States Postal Service

05981173

November 4, 1999

Vera F. Sturgis, )

Appellant, )

)

v. ) Request No. 05981173

) Appeal No. 01976894

William J. Henderson, ) Agency No. 1-K-221-1042-96

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

The agency timely initiated a request to the Equal Employment Opportunity

Commission to reconsider the decision in Vera F. Sturgis v. William

J. Henderson, Postmaster General, United States Postal Service, EEOC

Appeal No. 01976894 (August 19, 1998). EEOC Regulations provide that

the Commissioners may, in their discretion, reconsider any previous

Commission decision. 29 C.F.R. � 1614.407(a). The party requesting

reconsideration must submit written argument or evidence which tends to

establish one or more of the following three criteria: new and material

evidence is available that was not readily available when the previous

decision was issued, 29 C.F.R. � 1614.407(c)(1); the previous decision

involved an erroneous interpretation of law, regulation or material fact,

or misapplication of established policy, 29 C.F.R. � 1614.407(c)(2); and

the previous decision is of such exceptional nature as to have substantial

precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons

set forth below, the Commission denies the agency's request.

Appellant filed a complaint in which she set forth twenty allegations of

discrimination. Allegations (1) through (3) concerned denial of upward

mobility opportunities. Allegations (4) and (5) involved a claim of

managerial interference with the EEO process. The remaining allegations

pertained to denial of official time and other actions involving

appellant's EEO representative (hereinafter referred to as "LS").

The agency issued a final decision in which it accepted the first three

allegations and dismissed the rest. The previous decision ordered

the agency to process all but allegations (10), (11), (19), and (20).

It ordered the agency to determine whether it denied appellant and LS

official time, and to meet with LS to reach an agreement on the number

of hours to be used in representing EEO complainants. In its request

for reconsideration, the agency challenges the previous decision's order

to process allegations (4)through (9), (12), and (13). It argues that

these allegations should be dismissed because, in Sessoms v. United

States Postal Service, EEOC Appeal Nos. 01973440, et. al. (June 11,

1998), the Commission found that LS had been abusing the EEO process

in a case in which he was the complainant.<1> Since appellant has not

filed a request for reconsideration, we find that the agency's dismissal

of allegations (10), (11), (19), and (20) has not been challenged.

The agency argues that many of the issues in the instant case are

identical or similar to those raised in Sessoms, and that requiring it

to process allegations (4) through (9), (12), and (13) would, "upset

[its] ongoing attempt to preserve the EEO process." In making this

argument, the agency appears to be concerned that LS may be using his

position as appellant's representative to resurrect claims that were

dismissed in Sessoms. There is no evidence of this, however, as the

agency has not shown that allegations (4) through (9), (12), or (13)

raised matters that were addressed in Sessoms.

Regarding allegations (4) and (5), neither of these allegations

involves the denial of official time. The agency presents no argument

or evidence in support of its contention that allegations (4) and (5)

should be dismissed. We will therefore affirm the previous decision's

order to process these allegations.

With respect to allegations (6) through (9), (12), and (13), the

Commission has held that the right to EEO representation is a term

of employment, and denial of that right would render the affected

employee aggrieved. Storey v. Department of the Treasury, EEOC Request

No. 05970843 (August 5, 1999). While we share the agency's concern

regarding LS's propensity to abuse the EEO process, we are also concerned

that dismissing allegations (6) through (9), (12), and (13) would result

in appellant being punished for LS's misdeeds. The previous decision

struck the appropriate balance between maintaining the integrity of

the EEO complaints processing system and protecting appellant's rights

when it ordered the agency to negotiate with LS on what constitutes

reasonable representation time. Nothing in the previous decision's

order would prevent the agency from placing reasonable limits on LS's

representational activities. Elliot v. United States Postal Service,

EEOC Request No. 05960197 (November 13, 1997). We will therefore order

the agency to process these allegations, along with accepted allegations

(14) through (18) as an alleged violation of 29 C.F.R. � 1614.605(b).

After a review of the agency's request for reconsideration, the previous

decision, and the entire record, the Commission finds that the agency's

request does not meet the criteria of 29 C.F.R. � 1614.407(c), and

it is the decision of the Commission to deny the agency's request.

The decision of the Commission in Appeal No. 01976894 remains the

Commission's final decision. The agency shall carry out the order set

forth in that decision, as modified below. There is no further right

of administrative appeal from a decision of the Commission on a request

for reconsideration.

ORDER (E1092)

To the extent that it has not already done so, the agency shall process

allegations (1) through (5), 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 of this

decision. 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 of this decision,

unless the matter is otherwise resolved prior to that time. If 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.

The agency shall send to the Compliance Officer, as referenced below, a

copy of the agency's letter of acknowledgment to appellant, a copy of the

notice that transmits the investigative file, and a notice of rights.

The agency shall conduct an investigation of allegations 6 through 9,

and allegations 14 through 18, as described in appellant's supplemental

statement to her complaint dated May 29, 1996, to determine whether

the agency denied appellant and/or her representative official time in

violation of 29 C.F.R. � 1614.605(b).

As part of the investigation described in paragraph (3) of this order,

the agency shall investigate allegations (12) and (13), as described in

appellant's supplemental statement to her complaint dated May 29, 1996,

to determine whether the agency has provided appellant's representative

with official time and expenses for travel to and from the EEOC when

representing appellant in her EEO complaints.

The agency shall complete the investigation required by paragraphs (3)

and (4) of this order within ninety (90) calendar days of the date of

this decision.

Thereafter, the agency shall remedy the denial of official time and

travel expenses, if any. If any such matters remain in dispute, the

agency shall issue a new final decision describing the matters in dispute

and the factual and/or legal basis for denying additional official time

and/or travel expenses. The agency shall include in the investigative

record all relevant evidence pertaining to the official time and travel

expenses issues. The issuance of the final decision, if any, must be

completed within one hundred and twenty (120) calendar days of the date

this decision becomes final, unless the matter is otherwise resolved

prior to that time.

The agency shall send to the Compliance Officer, as referenced below,

evidence of the remedies provided under paragraph (6) of this order and

a copy of the final decision, if any, issued pursuant to paragraph (6)

of this order.

To the extent that it has not already done so, the agency shall meet with

appellant's representative, LS, within thirty (30) calendar days of the

date of this decision, to discuss the aggregate number of hours that are

available to him for representation of EEO complainants. The agency may

consider all relevant circumstances in determining what constitutes a

reasonable amount of official time, including the Commission's decision

in Sessoms v. United States Postal Service, EEOC Appeal Nos. 01973440,

et. al. (June 11, 1998).

The agency shall send to the Compliance Officer, as referenced below,

proof of the agency's compliance with paragraph (8) of this order.

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.

RIGHT TO FILE A CIVIL ACTION (Q0993)

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. 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:

Nov. 4, 1999

_______________ ______________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

1In Sessoms, the Commission found that LS had filed 22 complaints, raising

over 150 separate allegations. Many of those allegations concerned the

manner in which his complaints had been processed at the investigative and

hearing stages. The Commission found that LS had been pursuing a scheme

involving the misuse and misapplication of the administrative EEO process,

and that he had blatantly overburdened the system.