Wolodymyr A. Skrypka, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
05970800 (E.E.O.C. Nov. 8, 1999)

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