Virginia Morata, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 16, 1998
05960745 (E.E.O.C. Oct. 16, 1998)

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