01A23837_r
02-25-2003
Katherine L. Easterly, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Katherine L. Easterly v. United States Postal Service
01A23837
February 25, 2003
.
Katherine L. Easterly,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23837
Agency No. 1-E-991-0012-01
Hearing No. 380-A2-8118X
Complainant filed this appeal from an agency final decision dated February
15, 2002, dismissing the captioned complaint.<1> The Commission accepts
the appeal. See 29 C.F.R. � 1614.405.
As framed by the agency, in her complaint, complainant claimed
discrimination on the bases of sex (female), age (57), disability (31%
disabled), and retaliation for her prior EEO activity when: �She
was offered a job offer that would affect her seniority and was not
within her medical restrictions and she was not being paid for higher
level work.� In its decision, the agency dismissed the complaint on the
grounds that she had raised the identical claims in a previous complaint
(1-E-991-0007-01) which was currently pending a hearing before an EEOC
Administrative Judge (AJ).
According to the record, prior to the issuance of the agency's
dismissal, complainant requested a hearing on the captioned complaint.
Specifically, by letter to the EEOC's Seattle District Office, dated
February 3, 2002,<2> complainant requested a hearing before an AJ on
1-E-991-0012-01 (the instant complaint). Complainant indicated that
she filed her complaint on August 24, 2001, and that she had not yet
received a report of investigation. On February 7, 2002, the EEOC's
Seattle District Office, Hearings Unit, sent the agency a notice regarding
complainant's request for a hearing, and requested the complaint file.
However, as reflected above, the agency dismissed the complaint by
decision dated February 15, 2002.
In various notices and letters to the parties, the assigned AJ indicated
that the agency's dismissal was improper because complainant requested
a hearing prior to the dismissal, which was accepted by the Commission,
thereby ending the agency's authority over the matter. Additionally,
the AJ informed the parties that the dismissal was also improper because
the same matters were not raised in both complaints, further noting that
the agency should have treated the instant complaint as an amendment
to the first complaint (1-E-991-0007-01) rather than processing it as a
separate complaint. In a June 28, 2002 Order, the AJ informed complainant
that she would have to appeal the dismissal to the Commission, and that
anticipating that the dismissal would be overturned, the AJ also advised
the parties that 1-E-991-0007-01 would be held �in suspense� so that
the two cases will ultimately be heard together.
On appeal, complainant argues that she desires to have her reprisal claim
raised in the instant complaint included in consideration with the first
complaint, and requests that a hearing be conducted on the entire history
of the discrimination she alleges.
EEOC Regulation 29 C.F.R. � 1614.108(g), permits a complainant to
request a hearing after 180 days of filing his formal complaint, even
if the agency has not completed its investigation. In this case,
complainant filed her formal complaint on August 24, 2001, such that
the 180-day deadline falls on February 20, 2002. Therefore, we find
that complainant's request for a hearing, dated February 3, 2002,
and received at the EEOC Seattle District Office on February 6, 2002,
was premature. Moreover, we find that because complainant made her
request for a hearing prior to the expiration of the 180 days, the AJ
could not exercise jurisdiction over 1-E-991-0012-01, and should not
have accepted the request or sent notice to the agency. Furthermore,
because the 180 days had not yet expired at the time the agency issued
its decision on February 15, 2002, or by the time that complainant
received the decision on February 20, 2002, we find that the agency
properly exercised its authority to dismiss the complaint. Therefore,
we will now consider whether the agency properly dismissed the captioned
complaint pursuant to 29 C.F.R. � 1614.107(a).
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.
In her first complaint (1-E-991-0007-01), filed on May 29, 2001,
complainant cited an incident date of �May 1 & 2 & 3,� and claimed
that the job that the agency offered her was not within her medical
restrictions and not within her craft, consisting of higher level clerk
duties, but at lower level pay. Complainant averred that the agency
offered her many of these �fraudulent� job offers, and requests that she
be placed in a suitable assignment. She claimed discrimination on the
bases of sex, age, and disability, as well as �wage discrimination.�<3>
In her second complaint (1-E-991-0012-01), filed on August 24, 2001,
citing an incident date of June 19, 2001, complainant avers that the
agency offered her an unsuitable job assignment, which was rejected by her
physician. Furthermore, complainant avers that the agency lied to her,
caused her extreme stress, and has treated her �less than human� because
of her disability, and in retaliation for filing her first complaint.
Comparing these two claims, we find that they are not �identical.�
The two claims concern different job offers, several in May 2001, and
then another on June 19, 2001. Furthermore, in her second complaint,
complainant contends not only that she was again offered yet another
purportedly unsuitable position, but that in the course of doing so,
the agency allegedly subjected her to harassment, in the form of lies
and stress, and being treated �less than human,� claiming that this
treatment was motivated not only by her disability, but now also by
reprisal. Therefore, we find that the claims in these complaints are
not �identical,� and that the agency improperly dismissed the captioned
complaint on these grounds.
In further reviewing the record, based on complainant's appeal statement,
and the hearing request she submitted to the Seattle District Office,
we find that complainant desired to have the matter raised in her
first complaint consolidated with the matter she raised in the instant
complaint. In this regard, we find that the claims raised in the two
complaints are suitable for consolidation, because the instant complaint
identifies a subsequent incident of another purportedly unsuitable job
offer, as well as incidents of retaliatory harassment associated with the
filing of her first complaint. Therefore, given that the first complaint
is currently being held in abeyance before the AJ for a hearing at the
Seattle District Office, the Commission hereby exercises its discretion
and consolidates the instant complaint with 1-E-991-0007-01, and orders
the agency to request that a hearing be scheduled on both complaints.
29 C.F.R. � 1614.606.
In conclusion, for the reasons set forth above, we REVERSE the agency's
dismissal of the instant complaint, and consolidate 1-E-991-0007-01
and 1-E-991-0012-01, and REMAND this case to the agency for further
processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
Within fifteen (15) calendar days of the date that this decision becomes
final, the agency shall submit a copy of this decision, along with the
complaint file, to the Hearings Unit of the EEOC Seattle District Office,
and, pursuant to our consolidation of 1-E-991-0007-01 and 1-E-991-0012-01
herein, request that a hearing be scheduled on both complaints.
The agency is ordered to provide written notification to the Compliance
Officer at the address set forth below that this decision and the
complaint file has been transmitted to the Hearings Unit, along with
its request for hearing on 1-E-991-0007-01 and 1-E-991-0012-01 as a
consolidated matter.
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
February 25, 2003
__________________
Date
1The agency's decision inadvertently reflects
the date �2/2/15.� We note, however, that the agency submits a copy of
its certified mail delivery which indicates that the final decision was
delivered to complainant on February 20, 2002.
2The date on complainant's request for a hearing is February 3, 2001.
However, we find that this reflects a clerical error, and that the actual
date is February 3, 2002.
3It does not appear that complainant is raising a claim of discrimination
under the Equal Pay Act, such that this matter will not be further
addressed herein.