05970800
11-08-1999
Wolodymyr A. Skrypka, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Wolodymyr A. Skrypka v. United States Postal Service
05970800
November 8, 1999
Wolodymyr A. Skrypka, )
Appellant, ) Request Nos. 05970800
) 05980205
v. ) Appeal Nos. 01962577
) 01071682
William J. Henderson, ) Agency Nos. 1H302103395
Postmaster General, ) 1H302104496
United States Postal Service, )
Agency. )
___________________________________)
DECISION ON REQUESTS FOR RECONSIDERATION
INTRODUCTION
On May 27, 1997, appellant timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in
Wolodymyr A. Skrypka v. Marvin T. Runyon, Jr., Postmaster General,
United States Postal Service, EEOC Appeal No. 01962577 (April 18,
1997), which he received on April 28, 1997. On December 12, 1997,
appellant timely initiated a request to the Equal Employment Opportunity
Commission to reconsider the decision in Wolodymyr A. Skrypka v. Marvin
T. Runyon, Jr., Postmaster General, United States Postal Service,
EEOC Appeal No. 01971682 (November 7, 1997), which he received on
November 12, 1997. 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 grants both requests.
ISSUE PRESENTED
Whether the agency properly framed appellant's complaints.
BACKGROUND
Request No. 05970800
Appellant filed a complaint in which he alleged that one of his managers
created a hostile and abusive working environment around him because of
his race (white), national origin (Ukranian) and previous EEO complaints.
He described an incident which allegedly took place on December 1, 1994:
[The manager] was demeaning, harassing, and used oppressive supervision
when he addressed us as, "good morning children, good morning ladies,
etc." After he read the notices I asked him, "is it possible to greet
us with a cheerful - good morning - without calling us children, [or]
ladies." [The manager] got angry, loud, boisterous and started to verbally
berate me in front of all the other mechanics and electronic technicians.
This is not the only time he used oppressive supervision and abused his
supervisory status.
The agency dismissed appellant's complaint for failure to state a claim.
The previous decision affirmed, finding that appellant's formal complaint
and the corresponding documentation of counseling described only the
exchange that took place between himself and the manager on December 1,
1994.
Request No. 05980205
Appellant alleged that the agency discriminated against him on the
bases of race (white), national origin (Ukrainian), and reprisal when a
manager cursed at him during a meeting on January 18, 1996. He stated
that he was called into the manager's office and questioned in an angry
and hostile manner about a report that he had prepared. At one point
during the meeting, the manager allegedly shouted at appellant, "what
is this [expletive]!" The agency dismissed the complaint for failure to
contact an EEO counselor within 45 days of the allegedly discriminatory
incident and failure to state a claim. The previous decision summarily
affirmed the agency's dismissal of the complaint on the ground that
appellant failed to state a claim. It did not address the timeliness
of appellant's initial contact with the EEO counselor.
Claim Fragmentation
In both of his requests for reconsideration, appellant argues that his
allegations should have been considered as part of a broader, continuing
claim of harassment, as opposed to separate incidents involving isolated
remarks. He the cites ten other cases in which he made similar harassment
claims, but which the agency fragmented. These cases describe incidents
that go back to 1990. In eight of those cases, the Commission reversed
the agency's dismissal of appellant's complaint on procedural grounds,
and remanded the complaints for investigation. In the remaining two cases,
the Commission affirmed the agency's dismissal of the complaint.
ANALYSIS AND FINDINGS
If the matters at issue in appellant's requests were isolated
incidents, then we would agree that they would not state a claim of
discriminatory harassment. These matters are, however, the latest in
a series of incidents that stretches back to 1990. In these cases,
he has repeatedly asserted that he was subjected to a pattern of
discriminatory harassment in connection with the terms and conditions
of his employment. When confronted with claims like this, the agency
cannot ignore the pattern aspect of these claims and define the issues
in a piecemeal manner, as it appears to have done on numerous occasions.
Ferguson v. Department of Justice, EEOC Request No. 05970792 (March 30,
1999). In this case, however, many of the incidents may have already
been investigated separately, and therefore can no longer be consolidated
with the two incidents presently before us. We will therefore direct
the agency to investigate the incidents described in any prior appeals
which are still pending before it, and to allow appellant to present
material from previously completed investigations as background evidence.
In Request No. 05980205, the question arises as to whether appellant
timely raised the incident with an EEO counselor. We note that appellant
characterizes the incident described in Request No. 05980205 as the latest
incident in an ongoing campaign of harassment against him. Given the
Commission's repeated urgings that the incidents be consolidated and
investigated as a single harassment claim, we find the incident timely.
CONCLUSION
After a review of appellant's requests for reconsideration, the
agency's responses, the previous decisions, and the entire record,
the Commission finds that appellant's requests meet the criteria of 29
C.F.R. �1614.407(c), and it is the decision of the Commission to grant
both requests. The decisions of the Commission in Appeal Nos. 01962577
and 01972430 are reversed, and the matters remanded to the agency for
consolidated processing in accordance with our order below. There is no
further right of administrative appeal from a decision of the Commission
on a request for reconsideration.
ORDER (E1092)
The agency shall accept and investigate the incidents identified in
EEOC Appeal Nos. 01962577 and 01971682, together with the incidents
described in any prior appeals which are still pending before it, as
part of his ongoing claim of harassment. The agency shall acknowledge
to the appellant that it has received the remanded claim within thirty
(30) calendar days of the date that it receives 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 that it receives this decision, 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 acknowledgment 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.
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:
Nov. 8, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations