05980451
10-08-1998
Renea S. George, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Renea S. George v. United States Postal Service
05980451
October 8, 1998
Renea S. George, )
Appellant, ) Request No. 05980451
) Appeal No. 01973909
v. ) Agency No. 4G700002997
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
________________________________)
DECISION ON RECONSIDERATION
INTRODUCTION
On March 4, 1998, Renea S. George (hereinafter referred to as appellant)
timely filed a request for reconsideration of the decision in George
v. United States Postal Service, EEOC Appeal No. 01973909 (January
23, 1998). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, the appellant's request is denied. The Commission,
however, exercises its discretion and reconsiders the previous decision
for the limited purpose of modifying the Order therein.
ISSUE PRESENTED
The issue presented is whether appellant's request meets any of the
statutory criteria for reconsideration.
BACKGROUND
Appellant--a PS-5 Modified General Clerk--filed an EEO complaint alleging
discrimination based on race (black), color (light complected), sex
(female), disability (carpal tunnel syndrome), and reprisal (prior EEO
activity) when her supervisor questioned her about a prior EEO complaint
and commented about an upcoming doctor's appointment regarding her
on-the job-injury. In its final decision (FAD), the agency dismissed
the complaint on the grounds that it failed to state a claim. Appellant
appealed from the FAD. Upon review, the previous decision affirmed
the FAD. The previous decision found that record evidence failed to
show that appellant was disciplined or otherwise harmed as a result of
the supervisor's alleged statements.
The following is an account of the facts as described in appellant's
complaint. On September 10, 1996, appellant's supervisor spoke with
an agency official against whom appellant previously had filed an
EEO complaint. During the conversation, the agency official told the
supervisor that appellant had filed the EEO complaint against her in July.
The supervisor went to appellant's desk and asked appellant if she had
filed an EEO complaint against the agency official. Appellant asked
"when," he responded "July," and appellant confirmed that she had.
The supervisor then asked "why" and appellant told him. When the
supervisor asked if the complaint merited $300,000, appellant told
him that she always asked for "punitive damages" whenever she filed an
EEO complaint. According to appellant, the supervisor became angry,
biting his lower lip and throwing his hand up into air. She said that he
went to another office and shouted to the occupant about appellant's EEO
complaint in front of a customer, the Postmaster, and another individual.
In the remedies section of the EEO complaint form, appellant stated that
"I have been warned over & over" by the supervisor not to file an EEO
complaint against the agency official.
On September 11, 1996, appellant went to the doctor because she had
slipped on the cafeteria floor two days earlier. As a result, she
did not arrive at work until after 1:00 p.m. Appellant said that the
supervisor "made ugly remarks" because she had to go back to the doctor
again at 3:30 p.m. that day. Appellant said that the remarks were made
in front of her "co-worker & the public," and that the "harassment and
tessing (sic) teasing) did not stop there." Appellant did not provide
any specifics regarding the alleged harassment and teasing.
The EEO counselor's report summarized the supervisor's response to
appellant's allegations. He denied that he harassed or discriminated
against appellant. He said that appellant had filed a worker's
compensation claim regarding her on-the-job injury and that the Injury
Compensation Specialist had asked him to investigate the matter. In this
regard, he asked appellant about her alleged fall and spoke to the
witnesses she named, but they indicated that they had not seen anything.
The supervisor said that he discussed appellant's EEO complaint with
her in conversation after she informed him of the complaint.
In her reconsideration request, appellant submitted documents relating
to her worker's compensation claim, including a statement from her
psychiatrist.
In response, the agency contends that appellant's request fails to meet
the statutory criteria for reconsideration and that the request should
be denied for that reason.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.407 (c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
The Commission finds that the information submitted by appellant is
unrelated to the issue of whether her complaint states a claim under
the regulations. Consequently, the Commission finds that appellant's
request fails to meet the statutory criteria for reconsideration and the
request is denied for that reason. The Commission, however, exercises
its discretion and reconsiders the previous decision on its own motion
for the reasons set forth below.
With respect to the supervisor's remarks regarding her EEO complaint,
the Commission finds that the previous decision erred in dismissing the
allegation for failure to state a claim.
EEOC Regulation 29 C.F.R. 1614.101(b) provides that:
No person shall be subject to retaliation for opposing any practice made
unlawful by Title VII of the Civil Rights Act...the Age Discrimination
in Employment Act...the Equal Pay Act...or the Rehabilitation Act or
for participating in any stage of administrative or judicial proceedings
under those statutes.
Additionally, in Crespo v. United States Postal Service, EEOC Request
No. 05920842 (September 17, 1993), the Commission held that:
The agency has a continuing duty to promote the full realization of
equal employment opportunity in its policies and practices. This duty
extends to every aspect of agency personnel policy and practice in the
employment, advancement, and treatment of employees. Agencies shall,
among other things, insure that managers and supervisors perform in
such a manner as to effectuate continuing affirmative application and
vigorous enforcement of the policy of equal opportunity.
In this case, the supervisor questioned appellant about her EEO complaint
against another agency official; apparently became angry when appellant
explained that she routinely requested damages when she filed a complaint;
and, shouted to someone about appellant's complaint in front of a
customer, the Postmaster, and another person. Appellant also asserted
that the supervisor had warned her "over & over" not to file a complaint
against the agency official.
The supervisor admitted that he discussed appellant's EEO complaint with
her.
The supervisor's conduct, rather than encouraging the realization of
equal employment opportunity in the workforce, could have a potentially
chilling effect on the ultimate tool that employees have to enforce
equal employment opportunity--the filing of an EEO complaint. Under the
circumstances, the Commission finds that appellant's allegation states
a claim of interference in the EEO process. See Torrez v. Social
Security Administration, EEOC 05950947 (March 10, 1998). In light of
the foregoing, the Commission shall remand the matter to the agency for
investigation.
With respect to the supervisor's remarks regarding appellant's on-the-job
injury, the Commission affirms the previous decision's finding that
this allegation fails to state a claim. The EEO counselor's report
indicates that appellant had filed a worker's compensation claim and
that the supervisor had investigated the claim at the Injury Compensation
Specialist's request. As a result, the supervisor spoke to appellant and
those she had named as witnesses about the incident. Although appellant
asserted that the supervisor made "ugly remarks" because she had to
return to the doctor, she provided no indication as to what those remarks
were. Based on these facts, appellant has failed to show that she was
harmed and her allegation therefore fails to state a claim
CONCLUSION
After a review of the appellant's request for reconsideration, the
agency's response, the previous decision, and the entire record, the
Commission finds that appellant's request for reconsideration fails to
meet the criteria of 29 C.F.R. �1614.407(c), and the request hereby
is DENIED. The Commission, however, exercises its discretion and
reconsiders the previous decision on its own motion. The decision
in EEOC Appeal No. 01973909 hereby is AFFIRMED IN PART AND REVERSED
IN PART.
ORDER
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF APPELLANT'S RIGHTS
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 8, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat