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.