05960745
10-16-1998
Virginia Morata, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Virginia Morata v. United States Postal Service
05960745
October 16, 1998
Virginia Morata, )
Appellant, ) Request No. 05960745
) Appeal No. 01956118
v. ) Agency No. 4F940104294 et al.
) Hearing No. 370952074X et al.
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION ON RECONSIDERATION
INTRODUCTION
On July 25, 1996, the United States Postal Service (hereinafter referred
to as the agency) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Morata v. United States Postal Service, EEOC Appeal No. 01956118
(June 26, 1996). 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 or regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the 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 herein, the agency's
request is denied. The Commission, however, exercises its discretion and
reopens the previous decision for the limited purpose of correcting the
previous decision's Order.
ISSUE PRESENTED
The issue presented is whether the previous decision properly reversed
the agency's final decision dismissing appellant's complaints for failure
to state a claim.
BACKGROUND
Appellant--a PS-5 Window Clerk--filed a series of EEO complaints variously
alleging sex (female), age (42), and reprisal (prior EEO activity)
discrimination. The complaints were consolidated for processing. The
alleged discriminatory events of which appellant complained were as
follows:
1) On May 3, 1993, management condoned harassment by a fellow employee
(Union President) when he called appellant a "bitch" and tried to block
her way to the time clock and her supervisor (hereinafter Supervisor A)
refused to help her and lectured her in front of other clerks; on May 11,
1993, the employee harassed appellant about getting forms to file a Step
1 grievance;
2) On May 13, 1993, Supervisor A accused appellant of wasting Supervisor
A's time on a check acceptance matter when a customer insisted on speaking
to Supervisor A and "harassed, abused, and could have physically assaulted
[appellant];"
3) On June 8, 1993, Supervisor A issued appellant a direct order in a
threatening way and was "very unprofessional and abusive," insulting
appellant's integrity and intelligence as a human being.
4) On June 11, 1993, Supervisor A ignored appellant's complaints about
safety and health hazards, i.e., appellant's cash drawer was placed too
high in the vault and freezing temperatures in the ladies locker room;
5) On June 22, 1993, Supervisor A and another supervisor harassed
appellant about abiding by uniform regulations whereas another employee
(male) wore no tie for months;
6) On July 15, 1993, her supervisor (hereinafter Supervisor B) criticized
appellant's personal hygiene, i.e., instructed appellant on how to wash
her clothes, how often to bathe, and so on.
7) On August 11, 1993, Supervisor B falsely accused appellant of a "scent"
and threatened to send her home, and showed preferential treatment toward
other employees regarding work assignments; and management condoned
Supervisor B's actions.
8) On October 3, 1993, another clerk delayed giving appellant a message
that her husband had phoned her about an emergency and Supervisor A and
management failed to investigate the incident; and
9) On October 23, 1993, Supervisor B called her "bitch" in Spanish and
made a remark that appellant was the oldest clerk on the finance windows
and should know her job; and instead of firing or otherwise disciplining
Supervisor B, the Postmaster promoted her.
As relief, appellant requested--inter alia--compensatory damages.
Following an investigation, appellant requested a hearing before an EEOC
Administrative Judge (AJ). The agency filed a motion for a decision
without a hearing. When, after several continuances, appellant failed to
contact the AJ with a specific hearing date, the AJ issued a RD without
a hearing. Therein, the AJ found that appellant was not disciplined and
that she had failed to show how she was harmed or aggrieved as a result
of the alleged incidents. The AJ recommended that the agency dismiss the
complaints for failure to state a claim. In its final decision (FAD),
the agency adopted the AJ's findings of fact and conclusions of law.
Appellant appealed from the FAD.
Upon review, the previous decision reversed the FAD and remanded
appellant's complaints to the agency for further processing. The previous
decision found that appellant had identified various incidents occurring
between May 1993 and October 1993, which purportedly were perpetrated by
appellant's supervisors and management officials. The previous decision
found that appellant had alleged a pattern of conduct, i.e., harassment,
on the part of the identified officials and that she therefore had
identified a harm which she had suffered that affected a term or condition
of her employment. Consequently, the previous decision concluded that
appellant had stated a processable claim.
In its reconsideration request, the agency asserts that: appellant's
allegations fail to state a claim; the previous decision undermined the
AJ's authority to determine what constitutes an actionable claim; and,
the previous decision improperly ordered the agency to return the case
to an AJ for an RD when the AJ already had determined that the complaints
failed to state a claim.
Appellant did not submit a response.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
The Commission finds that the agency's request fails to meet any of
the statutory criteria for reconsideration and denies the request for
that reason. The cases cited by the agency to support its contention
that appellant's complaints fail to state a claim are not applicable to
the instant case because they concern only a single incident of alleged
discrimination rather than a pattern of conduct as in the instant
case. And, although the regulations allow an AJ to issue a recommended
decision without a hearing, the regulations also provide for appellate
review of a case. See 29 C.F.R. �1614.401 et seq.
The Commission exercises its discretion to reconsider the previous
decision on its own motion for the limited purpose of correcting the
previous decision's Order.
The previous decision ordered the agency to resume processing appellant's
complaints and to request the assignment of an EEOC AJ to conduct
a hearing.
In the RD, the AJ described events that occurred prior to the scheduled
hearing date. According to the AJ, appellant and her representative
failed to appear for the prehearing conference scheduled for January
19, 1995. The AJ was unable to contact either one to set up a new
date until after the agency had moved for a decision without a hearing.
Appellant objected to the motion and requested a continuance of the March
14, 1995 hearing date. The AJ granted a continuance to March 22, 1995.
On March 10, 1995, appellant's representative moved to withdraw from
the case citing a failure to communicate with his client, but requested
another continuance of the hearing date. Appellant contacted the AJ on
March 18, 1995, and requested a further continuance. The AJ provided
appellant with a list of available hearing dates through March and April,
and advised appellant to contact her immediately with a specific date.
Appellant did not do so. Thereafter, the AJ issued a RD without a
hearing.
Based on the foregoing, the Commission finds that appellant was afforded
an opportunity for a hearing on her complaints and that by failing
to respond to the AJ, she waived her right to a hearing. On remand,
the agency shall issue a final decision on the merits of appellant's
complaints.
CONCLUSION
After a review of the agency's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
agency's request for reconsideration fails to meet the criteria of 29
C.F.R. �1614.407(c), and the request hereby is DENIED. The Commission,
however, exercises its discretion to reconsider the previous decision on
its own motion for the limited purpose of clarifying the Order therein.
ORDER
The agency is ORDERED to resume processing of appellant's complaints.
Within sixty (60) days of its receipt of this decision, the agency
shall issue a final decision on the merits of appellant's complaints.
A copy of the agency's final decision 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� (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 APPELLANT'S RIGHTS
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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:
Oct. 16, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat