01A04556
07-06-2001
Marie E. Cronin-Cooper, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region). Appeal No. 01A04556 Agency No. 4-C-080-0007-98, 4-C-080-0015-98
Marie E. Cronin-Cooper v. U.S. Postal Service
01A04556
07-06-01
.
Marie E. Cronin-Cooper,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny/Mid Atlantic Region).
Appeal No. 01A04556
Agency No. 4-C-080-0007-98, 4-C-080-0015-98
INTRODUCTION
Complainant filed a timely appeal with this Commission from any agency
decision pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended
42 U.S.C. 2000e et seq. The Commission accepts the appeal in accordance
with 29 C.F.R. �1614.105.
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed appellant's
complaint for failure to state a claim when the agency fragmented
complainant's consolidated formal complaint two years after its filing
and dismissed appellant's complaint after considering only two of the
multiple alleged discriminatory acts.
BACKGROUND
On October 22, 1997 complainant timely initiated counselor contact
concerning alleged discrimination on the basis of sex (female)
and retaliation (prior EEO activity) (Agency No. 4-C-080-0007-98).
The first EEO counselor's report documents the complainant as discussing:
(1) the October 8, 1997 meeting where supervisors prohibited complainant
from returning to the Oaklyn Post Office for lunch breaks, from deviating
from her scheduled route, and from taking her lunch after the first six
hours of work; and, (2) complainant's undated pre-disciplinary hearing
for leaving her case without permission. Complainant timely contacted
the EEO counselor a second time on December 17, 1997 alleging continued
discriminatory behavior by her supervisors (Agency No. 4-C-080-0015-98).
The second counselor's report incorporates the alleged incidents of
discrimination discussed in the first report and adds the following
additional incidents: (3) two direct orders received on December 3,
1997 and a supervisor's refusal to speak with her in private; (4)
a December 12, 1997 emergency placement in off-duty status; and, (5)
several background incidents which may reflect disparate treatment.
The EEO counselor consolidated the two contacts into a singular final
interview and issued a right to file an individual complaint notice
which the complainant received May 20, 1998. The complainant filed her
formal complaint with the agency June 4, 1998. In her formal complaint,
complainant incorporates items from the counselor's sessions as well as
a series of additional incidents regarding her being harassed between
October 1997 and January 1998.
On April 5, 2000, the agency issued a letter notifying complainant's
attorney that the EEO counselor's consolidation of the two requests
for counseling was �at that point not appropriate and erroneous.�<1>
The agency at this time instructed complainant to file a separate formal
complaint for each counselor contact if she wished to pursue her complaint
on the formal level, effectively eliminating the timely June 4, 1998
filing of a consolidated complaint. Complainant responded in an April
21, 2000 letter referring the agency to her original June 4, 1998 filing.
The final agency decision from May 11, 2000 addresses only two incidents
raised in the first counselor contact (Agency Case No. 4-C-080-0007-98).
The agency decision discusses only the October 8, 1997 supervisor's
accompaniment of complainant on her route, and the time-wasting discussion
which the final agency decision dates as October 17, 1997. It does not
refer to the pre-disciplinary hearing noted in the first counselor's
report nor any other event mentioned in the second counselor's report or
the June 4, 1998 formal complaint. The agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107 (a)(1), for failure to state a claim.
Complainant then filed this appeal.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission agrees that the two isolated incidents which the agency
final decision describes are alone an insufficient basis for claim
of discrimination. A manager is entitled to supervisory measures
necessary to ensure that employees conduct their job in an efficient and
effective manner. However, the Commission notes that the agency failed
to address the majority of incidents contained in complainant's formal
complaint, and the Commission deems the agency's action to be tantamount
to a dismissal of those matters. Complainant's submissions on appeal
reveal that the EEO Office was notified of the issues by the two EEO
Counselor's reports for Agency Nos. 4-C-080-0007-98 and 4-C080-0015-98,
and complainant referenced the matters in her formal complaint.
Additionally, an agency is permitted to dismiss a claim for failure to
state a claim only when it appears beyond doubt that the complainant can
prove no facts supporting a claim which would entitle the complainant
to relief. Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). The complainant alleges unlawful disparate treatment
regarding several specific terms, conditions, and privileges of
employment, which, taken in the light most favorable to the complainant,
are sufficient to state a claim. Id.
The Commission finds that the complainant has set forth in her formal
complaint a timely complaint of harassment on the basis of sex and
reprisal. This claim of harassment consists of the incidents numbered
(1) through (5) as stated previously, as well as the incidents that
occurred between October 1997 and January 1998, which while not raised
with the counselor, are sufficiently like or related to the counseled
allegations as to warrant consolidated investigation.
The Commission requires agencies to address the pattern of ongoing
discrimination instead of isolating the events in a piecemeal fashion.
See EEOC - Management Directive (MD) 110 Chapter 5-5 and 5-6 (November 9,
1999); see also Ferguson v. Department of the Treasury, EEOC Request
No. 05970792 (March 30, 1999). The Commission concludes that the
agency improperly fragmented the complainant's complaint when the
agency separated the informal complaints in the April 5, 2000 letter
to complainant and ignored the pattern of discriminatory behavior when
the final agency decision discussed only two of the several incidents
described in the formal complaint.<3>
CONCLUSION
Upon review, the Commission finds that the agency's decision dated May
11, 2000, dismissing complainant's complaint for failure to state a
claim is improper pursuant to 29 C.F.R. � 1614.107(a)(1). Accordingly,
the agency's dismissal of complainant's claim is REVERSED. The claim
is REMANDED to the agency for consolidation in compliance with EEOC -
MD 110 Chapter 5 and 29 C.F.R. �1614.606, and further processing in
accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim of harassment 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 (M0900)
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
____07-06-01______________
Date
1 The agency fails to state why it took no action on complainant's
formal complaint between June 4, 1998 and April 5, 2000. The general
rule under 29 C.F.R. �1614.108 is that the agency has 180 days to
investigate a formal complaint. In the instant case, the agency took
approximately two years. In view of the agency's inordinate delay,
complainant has the right under 29 C.F.R. �1614.108(g) to request a
hearing by an administrative judge. If complainant desires a hearing,
complainant will submit a written request directly to the EEOC office
indicated in the agency's letter acknowledging her formal complaint,
and a copy of the request to the agency EEO office.
3 The Final Interview Letter describes a January 1998 grievance
settlement resolving the December 1997 14-day suspension, the December
10, 1997 letter of emergency off duty status, and ten non-specified
grievances. The Commission notes that we do not agree that the incidents
raised in the grievance settlement are moot because complainant's request
for compensatory damages remains unresolved. See Salazar v. Department
of Justice, EEOC Request No. 05930316 (February 9, 1994).