01985043
04-13-1999
Richard A. Seibert, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Richard A. Seibert v. United States Postal Service
01974843
April 13, 1999
Richard A. Seibert, )
Appellant, )
)
) Appeal Nos. 01974843
) 01981702
) 01981719
v. ) 01985019
) 01985043
) 01985382
) 01990145
William J. Henderson, ) Agency Nos. 4C-175-0018-97
Postmaster General, ) 4C-175-0072-97
United States Postal Service, ) 4C-175-0073-97
Agency. ) 4C-175-0060-97
______________________________) 4C-175-0064-98
4C-175-0027-97
4C-175-0082-97
DECISION
Appellant filed these seven appeals with the Commission from seven final
decisions of the agency concerning his complaints 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 Age Discrimination
in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. �621 et seq.,
and �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq. Upon review, we find that appellant's appeals are timely (see
29 C.F.R. �1614.402(a)), and are accepted in accordance with EEOC Order
No. 960.001, as amended.<1>
The issue on appeal is whether the agency properly dismissed appellant's
complaints on the grounds that are stated below.
Appellant filed his first formal complaint, Complaint No. 4C-175-0018-97,
on January 23, 1997, alleging that he was discriminated against because
of his age (47) and previous EEO activity when: 1) on December 4, 1996,
he was issued a 7-day suspension for Unsatisfactory Performance/Failure to
Follow Instructions; and 2) on November 18, 1996, he was issued a Letter
of Warning for Unsatisfactory Performance/Failure to Follow Instructions,
which was reissued on December 26, 1996. The agency accepted allegation
(1). Allegation (2) was dismissed on the grounds that it stated
the same claim that was raised by appellant in a previous complaint.
Appellant's appeal was docketed as EEOC Appeal No. 01974843.
With regard to his second complaint, appellant requested EEO counseling
on February 12, 1997. On November 15, 1997, he was notified of his right
to file a formal complaint. On November 20, 1997, he filed Complaint
No. 4C-175-0072-97. Appellant alleged that he was subjected to an
ongoing pattern of harassment and intimidation because of his age (47),
disability (not specified) and previous EEO activity when on December 31,
1996, he was given a pre-disciplinary discussion for delaying the mail
and unsatisfactory performance. The agency dismissed the complaint on
the grounds that appellant failed to state a claim because he was not
aggrieved. The agency did not address appellant's allegation of ongoing
harassment. Appellant's appeal was docketed as EEOC Appeal No. 01981702.
With regard to his third complaint, appellant requested EEO counseling
on February 7, 1997. On November 15, 1997, he was notified of his right
to file a formal complaint. On November 20, 1997, he filed Complaint
No. 4C-175-0073-97. Appellant alleged that he was subjected to an
ongoing pattern of harassment and intimidation because of his age (47),
disability (not specified) and previous EEO activity when on February
4, 1997, he was given a pre-disciplinary discussion for walking around
and wasting time. The agency dismissed the complaint on the grounds
that appellant failed to state a claim because he was not aggrieved.
The agency did not address appellant's allegation of ongoing harassment.
Appellant's appeal was docketed as EEOC Appeal No. 01981719.
With regard to his fourth complaint, appellant requested EEO counseling
on June 18, 1997. On March 3, 1998, he was notified of his right
to file a formal complaint. On March 4, 1998, he filed Complaint
No. 4C-175-0060-97. Appellant alleged that he was subjected to an
ongoing pattern of harassment and intimidation because of his age (47),
disability (not specified) and previous EEO activity when in late May or
early June 1997, management altered the PS Form 3996 that pertained to
his October 25, 1996 EEO meeting, as a representative, with [a female
employee].<2> According to appellant, management altered the form
in order to establish that forms pertaining to him were completed in
a similar manner. The agency dismissed the complaint on the grounds
that appellant failed to state a claim because he was not aggrieved.
The agency did not address appellant's allegation of ongoing harassment.
Appellant's appeal was docketed as EEOC Appeal No. 01985019.
With regard to his fifth complaint, appellant requested EEO counseling on
March 13, 1998. On April 29, 1998, he was notified of his right to file a
formal complaint. On May 4, 1998, he filed Complaint No. 4C-175-0064-98.
Appellant alleged that he was discriminated against because of his
age (48), disability (perceived) and previous EEO activity when on an
unspecified date his EEO counselor/investigator delayed processing his
complaints for many months. Appellant also alleged that some of his
complaints were consolidated, but others were not. The agency dismissed
the complaint on the grounds that appellant failed to state a claim
because he was not aggrieved. Appellant's appeal was docketed as EEOC
Appeal No. 01985043.
With regard to his sixth complaint, appellant requested EEO counseling
on January 8, 1997. On February 20, 1998, he was notified of his right
to file a formal complaint. On February 28, 1998, he filed Complaint
No. 4C-175-0027-97. Appellant alleged that he was discriminated against
because of his age (47), disability (not specified) and previous EEO
activity when: 1) on December 31, 1996, he was issued a 14-day suspension
for Unsatisfactory Performance/Delay of First Class Mail; and 2) on
January 17, 1997, management suggested that he see an EAP counselor.
The agency dismissed the complaint on the grounds that appellant failed
to state a claim because he was not aggrieved. According to the agency,
appellant never served the 14-day suspension and all discipline had been
removed from his file. Appellant's appeal was docketed as EEOC Appeal
No. 01985382.
With regard to his seventh complaint, appellant requested EEO counseling
on July 11, 1997. On March 5, 1998, he was notified of his right
to file a formal complaint. On March 9, 1998, he filed Complaint
No. 4C-175-0082-97. Appellant alleged that he was discriminated against
because of his age (48), disability (not specified) and previous EEO
activity when from November 1996 through June 1997, his requests for sick
leave were denied. According to appellant, he had to use annual leave;
therefore, his retirement date became June 30, 1997, not June 27, 1998.
The agency dismissed the complaint on the grounds that appellant failed
to state a claim because he was not aggrieved. According to the agency,
sick leave was approved for appellant for the periods of November 25-29,
1996, and June 21-27, 1997. The agency also indicated that appellant's
last day in a pay status was June 27, 1997.<3> Appellant's appeal was
docketed as EEOC Appeal No. 01990145.
EEOC Appeal No. 01974843
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
In the instant complaint, we find that allegation (2) states the identical
claim that was raised in appellant's Complaint No. 4C-175-0012-97.
On December 23, 1996, appellant filed Complaint No. 4C-175-0012-97.
Among other things, he alleged that on November 18, 1996, he was issued
a Letter of Warning for Unsatisfactory Performance/Failure to Follow
Instructions. After an investigation, the agency, on September 11, 1998,
found that appellant had not been discriminated against with regard to
the allegations contained in his complaint. Appellant filed an appeal
with the Commission on September 25, 1998. This appeal was docketed as
EEOC Appeal No. 01987076, and is currently pending before the Commission.
Accordingly, since allegation (2) of appellant's Complaint
No. 4C-175-0018-97 is identical to an allegation contained in his
Complaint No. 4C-175-0012-97, we will AFFIRM its dismissal.
EEOC Appeal Nos. 01981702, 01981719, 01985019, 01985382 and 01990145
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall
dismiss a complaint that fails to state a claim under �1614.103.
An agency, however, must 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;
�1614.106(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).
Appellant, throughout these complaints, maintained that he was subjected
to a pattern of ongoing harassment and intimidation by agency officials
November 1996 thru 1998 because of his age, disability and previous EEO
activity. The Commission has previously held that an agency should not
ignore the "pattern aspect" of a complainant's allegations and, as here,
define the issues in a piecemeal manner where an analogous theme unites
the matters complained of. Meaney v. Department of the Treasury, EEOC
Request No. 05940169 (November 3, 1994). By alleging such a pattern
of harassment, appellant has stated a cognizable claim under the EEOC
regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November
12, 1993). The agency should have consolidated the above complaints
and processed them in light of appellant's allegation of harassment.<4>
Accordingly, the agency's decisions to dismiss Complaint
Nos. 4C-175-0072-97, 4C-175-0073-97, 4C-175-0060-97, 4C-175-0027-97
and 4C-175-0082-97 for failure to state a claim were improper and are
REVERSED.<5> These five complaints are REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
EEOC Appeal No. 01985043
Upon review, the Commission finds that appellant's complaint was properly
dismissed for failure to state a claim pursuant to 29 C.F.R. �1614.107(a).
Appellant alleged that he was discriminated against with regard to
the manner that his numerous complaints were processed by the agency.
Specifically, he named an EEO counselor/investigator who he maintained
delayed the processing of his numerous complaints for many months.
He also questioned the counselor's decision to consolidate certain cases,
but not others. In the past, the agency would have been required to
treat appellant's complaint as a spin-off complaint, and process it
pursuant to 29 C.F.R. �1613.262(a) if it was timely raised. With the
implementation of 29 C.F.R. Part 1614, however, the Commission omitted
the section dealing with spin-off complaints and left only the reference
to reprisal in 29 C.F.R. �1614.101, which prohibits retaliation for
opposition to practices made unlawful under the governing statutes.
The new guidance for treating allegations regarding the processing of
a complaint requires only that the agency refer the complainant to the
agency official responsible for the quality of complaint processing, and
that those individuals earnestly attempt to resolve any dissatisfaction
as early as possible. See EEOC Management Directive (MD-110) at 4-8.
Accordingly, the agency's final decision is hereby AFFIRMED.
ORDER
The agency, within fifteen (15) calendar days of the date this
decision becomes final, is ORDERED to notify appellant that Complaint
Nos. 4C-175-0072-97, 4C-175-0073-97, 4C-175-0060-97, 4C-175-0027-97
and 4C-175-0082-97 are being consolidated for further processing in
accordance with 29 C.F.R. �1614.108. The agency is also advised to
consider consolidating the above complaints with any other complaints,
filed by appellant, that are now pending and which allege harassment.
A copy of the agency's notice of consolidation 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 RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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. If you
file a request to reconsider and also file a civil action, 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:
April 13, 1999
DATE Ronnie Blumenthal, Director
1Appellant received the agency's final decision concerning complaint
4C-175-0072-97 on November 28, 1997. Appellant's appeal was due
on December 28, 1997, the 30th day after the final decision appeal
was received. Although the appeal was received by the Commission
on December 29, 1997, we note that December 28, 1997 was a Sunday.
Therefore, pursuant to 29 C.F.R. �1614.604(d), we find that appellant's
appeal was filed in a timely manner.
2Apparently, PS Form 3996 is used when an employee has to have another
person perform their regular duties for some reason.
3Appellant, among other things, sought compensatory damages as a remedy
in his complaints.
4In his October 5, 1998 appeal of Complaint No. 4C-175-0082-97 (EEOC
Appeal No. 01990145), appellant's most recent appeal, he stated that
"[I] was forced to take disability retirement in June 1997 because
of the agency's willful harassment and intimidation." A fair reading
of appellant's contention indicates that he is raising a constructive
discharge allegation. Appellant is advised that if he wishes to pursue,
through the EEO process, this allegation, he shall initiate contact
with an EEO counselor within 15 days after he receives this decision.
The Commission advises the agency that if appellant seeks EEO counseling
regarding the constructive discharge allegation within the above 15
day period, the date appellant filed the appeal statement, October 5,
1998, shall be deemed to be the date of initial EEO contact, unless
he previously contacted a counselor regarding this matter, in which
case the earlier date should serve as the EEO counselor contact date.
Cf. Alexander J. Qatsha v. Department of the Navy, EEOC Request
No. 05970201 (January 16, 1998).
5The agency's decisions would have, in large part, been correct if
appellant's allegations were viewed by themselves; however, appellant
alleged that he was subjected to an ongoing pattern of harassment.
In this context, he states a claim. See Hatchett v. USPS, EEOC Request
No. 05950758 (May 16, 1997).