01a03377
07-21-2000
Anne L. Herling, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Annie L. Herling v. USPS
01A03377
07-21-00
.
Anne L. Herling,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03377
Agency Nos. 1J-603-0022-00 - 1J-603-0037-00
1J-603-0040-00 - 1J-603-0050-00
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning 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.<1> According to complainant, the final agency
decision was received on February 25, 2000.<2> The appeal was
postmarked March 25, 2000. Accordingly, the appeal is timely (see 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.402 (a)), and is accepted by the Commission in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405).
The issue on appeal is whether, for the reasons set forth below, the
agency properly dismissed complainant's 27 complaints.
In Complaint Nos. 1J-603-0022-00, 1J-603-0029-00, 1J-603-0030-00,
1J-603-0031-00, 1J-603-0032-00, 1J-603-0033-00, 1J-603-0035-00 and
1J-603-0036-00(hereinafter, Complaints (1), (8), (9), (10), (11),
(12), (14), and (15), respectively), complainant alleged that she was
discriminated against because of her race, religion, national origin,
and in retaliation for engaging in previous EEO activity when A-1, the
EEO Compliance/Appeals Coordinator, failed to produce records relevant
to various EEO cases that were before an EEOC AJ for a hearing held on
September 8, 1999.<3>
In Complaint No. 1J-603-0023-00 (hereinafter, Complaint (2)), complainant
alleged that she was discriminated against because of her race, religion,
national origin, and in retaliation for engaging in previous EEO activity
when A-1 distributed a letter about workplace violence. She also claimed
that A-1 committed a criminal offense when he perjured himself at the
September 8, 1999 hearing.
In Complaint Nos. 1J-603-0024-00 and 1J-603-0049-00 (hereinafter,
Complaints (3) and (26), respectively), complainant alleged that she was
discriminated against because of her race, religion, national origin, and
in retaliation for engaging in previous EEO activity when a Commission
employee, B-1, did not review the agency's resources and procedures to
ensure that, among other things, the agency made reasonable efforts
to resolve complaints in a timely manner, develop adequate factual
records, and issue decisions that were consistent with acceptable
legal standards. Complainant also alleged discrimination because
B-1 did not grant her request for an extension to complete EEO Case
No. 1J-603-0022-98, which was before the EEOC AJ at the September 8,
1999 hearing.
In Complaint No. 1J-603-0025-00 (hereinafter, Complaint (4)),
complainant alleged that she was discriminated against because of her
race, religion, national origin, and in retaliation for engaging in
previous EEO activity when an Administrative Judge, C-1, offered her
$100.00 for the following EEO cases, 1J-603-0051-97, 1J-603-0020-98,
1J-603-0025-98, 1J-603-0026-98, 1J-603-0027-98, 1J-603-0092-98,
1J-603-0095-98, 1J-603-0117-98, 1J-603-0129-98, and 1J-603-0130-98.
According to complainant, she rejected the AJ's offer.
In Complaint Nos. 1J-603-0026-00, 1J-603-0027-00, 1J-603-0028-00,
and 1J-603-0050-00 (hereinafter, Complaints (5), (6), (7) and (27),
respectively), complainant alleged that she was discriminated against
because of her race, religion, national origin, and in retaliation for
engaging in previous EEO activity when D-1, an EEO Counselor/Investigator,
sent her notices, dated December 12, 1997, concerning her right to file
formal complaints pertaining to various EEO cases.
In Complaint No. 1J-603-0034-00(hereinafter, Complaint (13), complainant
alleged that she was discriminated against because of her race, religion,
national origin, and in retaliation for engaging in previous EEO activity
when A-1 failed to reply to and comply with the Federal Register regarding
Case No. 1J-603-0051-97, which was heard by the Commission on September
8, 1999.
In Complaint Nos. 1J-603-0037-00, 1J-603-0041-00, and 1J-603-0043-00
(hereinafter, Complaints (16), (18), and (20), respectively),
complainant alleged that A-1 and F-1, the agency's representative,
discriminated against her because of her race, religion, national origin,
and in retaliation for engaging in previous EEO activity when certain
witnesses either appeared or failed to be called before the September 8,
1999 hearing.
In Complaint No. 1J-603-0040-00 (hereinafter, Complaint (17)), complainant
alleged that she was discriminated against because of her religion and in
retaliation for engaging in previous EEO activity when E-1, Supervisor
Distribution Operations, disapproved her PS Form 3971 for .22 units of
sick leave for November 17, 1998.<4>
In Complaint No. 1J-603-0042-00 (hereinafter, Complaint (19)), complainant
alleged that she was discriminated against because of her race, religion,
national origin, and in retaliation for engaging in previous EEO activity
when G-1, Manager, Distribution Operations, was allowed to maintain his
job position after the EEOC hearing on September 8, 1999.
In Complaint Nos.1J-603-0044-00, 1J-603-0046-00, 1J-603-0047-00, and
1J-603-0048-00 (hereinafter, Complaints (21), (23), (24), and (25),
respectively) complainant alleged that she was discriminated against
because of her religion and in retaliation for engaging in previous EEO
activity by the Postmaster General, C-1and F-1 at the September 8, 1999
hearing. Complainant did not specify how she was discriminated against.
In Complaint No. 1J-603-0045-00 (hereinafter, Complaint (22)), complainant
alleged that she was discriminated against because of her race, religion,
national origin, and in retaliation for engaging in previous EEO activity
when H-1, Manager, EEO, did not change the date of the September 8,
1999 hearing.
On February 16, 1999, the agency issued a final decision that dismissed
complainant's complaints on the grounds that her claims alleged
dissatisfaction with the processing of previously filed complaints.
The agency also determined that complainant failed to state a claim.
This appeal followed.
Pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(8)), an agency may
dismiss a claim that alleges dissatisfaction with the processing of a
previously filed complaint. Accordingly, we find that Complaint (1),
the portion of Complaint (2) pertaining to A-1 committing a criminal
offense by perjuring himself at the September 8, 1999 Hearing, and
Complaints (3), (4), (5), (6), (7), (8), (9), (10),(11), (12), (13),
(14), (15), (16), (18), (20), (21), (22), (23), (24), (25), (26) and
(27) were properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(8).
Therefore, we AFFIRM their dismissal.
With respect to that portion of Complaint (2) pertaining to A-1's
distribution of a letter about workplace violence and Complaint (19),
we find that complainant failed to establish that she suffered a harm or
loss with respect to a term, condition, or privilege of her employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 22, 1994). Also, with respect to
complainant's claim of reprisal discrimination regarding these matters,
we find no persuasive evidence that these actions were reasonably
likely to deter complainant from engaging in protected EEO activity.
Carroll v. Department of the Army, EEOC Request No. 05970939 (April
3, 2000). Therefore, we AFFIRM the agency's dismissal of these claims
on the grounds that they fail to state a claim. 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified as 29 C.F.R. � 1614.107(a)(1)).
Finally, with respect to Complaint (17), we do not find that this matter
pertains to the processing of a prior EEO complaint. Moreover, we find
that complainant's allegation, that her November 17, 1998 request for
.22 units of sick leave was disapproved for discriminatory reasons, does
state a claim. Consequently, we will REVERSE the dismissal of Complaint
(17) and will REMAND this matter in accordance with the Order below.<5>
ORDER (E0400)
The agency is ORDERED to process the remanded claim in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claim 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision 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. 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 (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, Acting Director
Office of Federal Operations
__07-21-00________________
Date
1On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at www.eeoc.gov.
2The agency offered no evidence or argument that would contradict this
assertion.
3Complainant did not specify her race, national origin, or religion.
The record, however, indicates that her national origin is Hispanic and
her religion is designated as Christian.
4In its EEO counselor's report, the agency indicated that this matter
was adjudicated at the September 8, 1999 hearing. We note, however, that
there is no evidence in the record to support the agency's contention.
5On appeal, the agency presented evidence that since March 1997,
complainant has filed ninety (90) formal complaints of discrimination.
According to the agency, complainant's entire appeal should be dismissed
on the grounds that she has engaged in a clear pattern of misusing
the EEO process. Because of our decisions above, we will decline the
agency's request.