01996244
10-04-2001
Carolyn R. Crosby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area) Agency.
Carolyn R. Crosby v. United States Postal Service
01996244
October 4, 2001
.
Carolyn R. Crosby,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area)
Agency.
Appeal No. 01996244
Agency No. 1G-753-0058-99
DECISION
On July 28, 1999, the agency issued a final decision partially
dismissing one of complainant's three claims for untimely EEO Counselor
contact. Specifically, the agency dismissed complainant's claim that
"since 1997 and continuing," she was denied the opportunity to work
overtime in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The agency
accepted its own modification of the claim as follows: "from Quarter 4,
1998 (October through December 1998) and ongoing," complainant was denied
the opportunity to work overtime. The agency also accepted complainant's
claims that: (1) on January 6, 1999, she was issued a Letter of Warning;
and (2) on January 14, 1999, her leave request was denied. Complainant
appealed the partial dismissal.<1>
The Commission finds that the agency erred by dismissing complainant's
claim under a reasonable suspicion standard because complainant
established a continuing violation. See Anisman v. Department of the
Treasury, EEOC Request No. 05A00283 (April 12, 2001). In reaching this
conclusion, we note that, as acknowledged by the agency, complainant
initiated timely EEO Counselor contact in regard to Quarter 4, 1998
and that the denial of overtime is identical in all of the quarters
encompassed by complainant's "since 1997 and continuing" claim. Thus,
complainant clearly established a continuing violation; that is, a
series of related discriminatory acts, having a common nexus or theme,
one of which fell within the time period for contacting an EEO Counselor.
See Reid v. Department of Commerce, EEOC Request No. 05970705 (April 22,
1999). Accordingly, the agency's final decision dismissing complainant's
claim is reversed, and the complaint is remanded to the agency for
processing consistent with the Order below.<2>
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 4, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 On November 9, 1999, new regulations governing the administrative
processing of federal sector employment discrimination complaints became
effective. The regulation found at 29 C.F.R. 1614.107(b) provides
that where an agency decides that some but not all of the claims in a
complaint should be dismissed, the agency shall notify the complainant
of its determination, but this determination is not appealable until
final action is taken on the remainder of the complaint. However,
the agency issued its partial dismissal prior to the issuance of these
regulations, and the record establishes that on March 7, 2000, the
agency issued a final decision on the merits of the two claims initially
accepted for investigation and the modified "from Quarter 4, 1998" claim.
The Commission has no record of an appeal filed by complainant on the
agency's March 7, 2000 decision. We note that although the agency had
jurisdiction over the Letter of Warning and denial of leave claims,
the claim concerning the denial of overtime, in both its original and
modified form, was on appeal to the Commission, and thus outside of the
agency's jurisdiction at the time the agency issued its final decision.
2 On remand, the agency is directed to consider the Commission's
recent decision in Spaulding v. United States Postal Service, EEOC
Appeal Nos. 01982863; 01991949; 01991950; 01991951; 01991952; 01991953
(September 18, 2001).