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

Equal Employment Opportunity CommissionJul 6, 2001
01A04556 (E.E.O.C. Jul. 6, 2001)

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).