01992270_r
11-21-2001
Gloria D. McCombs, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gloria D. McCombs v. United States Postal Service
01992270
November 21, 2001
.
Gloria D. McCombs,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01992270
Agency No. 1A-116-0052-98
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated December 23, 1998, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
On August 7, 1998, complainant contacted an EEO Counselor. Informal
efforts to resolve her concerns were unsuccessful. On October 20, 1998,
complainant filed a formal complaint. Therein, complainant alleged that
she was subjected to discrimination on the bases of race and sex when:
On August 7, 1998, complainant noticed the amount of the Spot Award she
approved and submitted to the Plant Manager on June 5, 1998, was reduced
from $1,000.00 to $500.00;
On an unspecified date, the FY 1997 Merit Evaluations for three
Supervisors Distribution Operations (SDO's) in complainant's area of
responsibility were modified by the Plant Manager;
On an unspecified date, the FY 1996 Merit Evaluation guidelines were
not adhered to by the Plant Manager;
On unspecified dates, the Plant Manager made untimely response, approval,
and modifications to request for Spot Awards and special achievement
awards; and
On an unspecified date, the Plant Manager failed to adjust complainant's
salary for promotion to EAS-24 under the guidelines of the Management
Progression Training Program.
In its final decision dated December 23, 1998, the agency dismissed
complainant's complaint. Specifically, the agency found that claims 1
and 4 stated the same claims involved in a previous EEO complaint filed
by complainant. Further, the agency found that claims 2, 3, and 5 were
not timely raised with an EEO Counselor.
On appeal, complainant contends that claim 4 does not involve the same
matter as her previous complaint because a different incident and manager
are involved in each matter. Further, complainant argues that all claims
raised in her complaint were reflective of �ongoing discrimination of
similar acts.�
Claims 1 and 4
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
Regarding claim 1, the Commission finds that the agency improperly
dismissed this claim. The record reveals that on September 14, 1998,
complainant filed a complaint (Agency No. 1A-116-0035-98) that, in
pertinent part, alleged that the agency engaged in unlawful discrimination
when an Acting Plant Manager failed to respond to complainant's June
5, 1998 submission of an awards package for special achievement and
spot awards. In contrast, the instant claim 1 involves a claim that
the agency unlawfully reduced the amount of a spot award.
Regarding claim 4, the Commission determines that this claim was also
improperly dismissed. The record reflects that claim 4 of the instant
complaint involves a comparable matter as that raised in the previous
complaint; however, claim 4 is different since it involves a different
agency official and a different incident. Consequently, the Commission
finds that claims 1 and 4 do not state the same claim as complainant's
previous complaint.
Claims 2, 3, and 5
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. However, EEOC Regulations provide that the agency or the
Commission shall extend the time limits when the individual shows that
he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he was prevented by circumstances beyond his control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
The Commission has held that the time requirement for contacting an
EEO Counselor can be waived as to certain claims within a complaint
when the complainant alleges a continuing violation, that is, a series
of related discriminatory acts, one of which falls within the time
period for contacting an EEO Counselor. The Commission has held
that evidence showing that a complainant had, or should have had, a
reasonable suspicion of unlawful employment discrimination more than
45 days prior to initiating EEO Counselor contact will not preclude
acceptance of an otherwise timely claim of ongoing discrimination.
See Anisman v. Department of the Treasury, EEOC Request No. 05A00283
(April 12, 2001). If one or more acts falls within the time period
for contacting an EEO Counselor, the complaint is timely with regard
to all that constitute a continuing violation, provided the acts are
interrelated by a common nexus. Verkennes v. Dept. of Defense, EEOC
Request No. 05900700 (September 21, 1990).
After a thorough review of the record, the Commission finds that claims 2,
3, and 5 are part of a continuing violation. The Commission notes that
claims 2, 3 and 5 involve similar, interrelated matters that underpin
complainant's general assertion that her managers engaged in an ongoing,
concerted campaign to undermine her professional authority and integrity,
with the last incident occurring in August 1998. Specifically, because
complainant clearly contacted an EEO Counselor in a timely manner
regarding the matter addressed in claim 1, discussed above, claims 2,
3, and 5 were also timely raised within the context of a continuing
violation.
Accordingly, the Commission REVERSES the agency's final decision, and
hereby REMANDS complainant's complaint for further processing consistent
with this DECISION and the ORDER set herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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
November 21, 2001
__________________
Date