01993395
09-24-2001
Lynnea St. John, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lynnea St. John v. United States Postal Service
01993395, 01A02206
September 24, 2001
.
Lynnea St. John,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01993395, 01A02206
Agency No. 4-C-442-0072-99
DECISION
Complainant filed a formal complaint alleging employment discrimination
on the bases of sex (female), age (52), disability (stress), and in
reprisal for prior EEO activity when:
On December 3 and 4, 1998, complainant was told to cancel a day of
annual leave if she wanted to get the main stock taken care of;
On December 14, 1998, complainant's file cabinet was broken into and
no investigation was done;
On December 17, 1998, complainant was not afforded overtime to achieve
all work assigned, while another supervisor was afforded overtime;
On December 17, 1998, complainant's work load doubled from the previous
year;
On December 24, 1998, complainant was not allowed to do her job,
resulting in an entire box of retail items being thrown away when they
became outdated; complainant was micro-managed and harassed about work;
she was called into the Postmaster's office and read the Ethical Code of
Conduct and told she was playing games; she was told in front of other
employees that he was the boss and to do as he instructs; management
did nothing about violence, harassment, poor working conditions, a lack
of dignity and respect, and not allowing complainant to do her job;
complainant was harassed by being yelled at; the Postmaster shook
his finger in complainant's face and did not allow her to supervise
her employees;
On December 24, 1998, management allowed a rural carrier to do electrical
work at the facility;
On January 8, 1999, after complainant �called-off� work due to the
weather, the Postmaster called complainant at home harassing her to
come to work;
Since 1993, complainant's stock has been left unattended for periods
of time;
On January 8, January 23, and February 1, 1999, complainant's stock was
left unattended for periods of time, still is not secured, and therefore,
complainant does not believe she should have to pay a $45.51 shortage
on her audit;
On January 21, and February 3, 1999, complainant was denied annual leave;
On February 1, 1999, and prior dates, complainant was locked out of
the Postmaster's office after he left;
On February 1, 1999, management accommodated other employees' schedule
requests, but not complainant's; and
On January 16, 1999, complainant's food was stolen from the refrigerator
in the office and the Postmaster did nothing when it was reported
to him.<1>
In a March 3, 1999 decision, the agency accepted claims (1) - (5),
(7), (9), (10), and (12) for investigation. It dismissed claims (6),
(11), and (13) for failure to state a claim, and claim (8) for untimely
counselor contact. Complainant appealed the agency's partial dismissal
to this Commission, docketed as EEOC Appeal No. 01993395.
Meanwhile, the agency proceeded with its investigation of the accepted
claims. After providing complainant with a copy of the report of
investigation, the agency issued a finding of no discrimination on the
merits of the accepted claims. Complainant also appealed this August 9,
1999 finding to this Commission, docketed as EEOC Appeal No. 01A02206.
Under revisions to 29 C.F.R. Part 1614, effective November 9, 1999,
there is no right to appeal partially dismissed claims prior to the
adjudication of the entire complaint. In the present circumstance,
however, the accepted claims also are pending with the Commission, in
EEOC Appeal No. 01A02206. Since an agency decision has been rendered on
all issues in the complaint, the entire file can be reviewed together.
The Commission will consolidate both appeals in the present decision.
On appeal, complainant argues that, with regard to claim (6), she
told a subordinate employee not to do electrical work, because he was
not a maintenance employee. According to complainant, the Postmaster
told the employee he could do the work, despite complainant's express
prohibition. Complainant also contends that being locked-out of the
supervisor's office (claim (11)) affected her ability to do her job;
she cited several incidents of needing to retrieve information from the
office in order to complete her duties. Complainant argues that claim
(13) also involves her supervisory authority. Complainant opines that
management undermined her authority by ignoring her complaint while
addressing other employees' accusations of theft.
Concerning the timeliness of claim (8), complainant argues that similar
incidents have occurred within the forty-five day time limit, so the
prior incidents dating back to 1993 also should be considered timely.
Complainant also repeatedly refers to her claims as part of a pattern
of harassment.
EEOC Regulations require the dismissal of complaints that fail to
state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,
complainant must allege present harm inflicted on the basis of race, sex,
religion, national origin, age, disability, or prior protected activity.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
To the extent that complainant alleges harm from the agency's failure to
implement a settlement agreement he failed to state an independent claim.
Complainant previously alleged breach of the agreement, and the agency
reinstated the complaint in Agency No. 4-C-442-0080-98. The agency
issued a decision on the merits of the claim, pending separately on
appeal in EEOC Appeal No. 01A03866.
The Commission finds that complainant's claims are more properly
analyzed for whether they state an overriding claim of harassment.
See Estate of Routson v. National Aeronautics and Space Admin., EEOC
Request No. 05970388 (March 18, 1999). The agency's decision to address
each incident of harassment claim separately resulted in the improper
fragmentation of her harassment claim. When the dismissed incidents are
considered together with the accepted claims as part of an overriding
claim of harassment, the Commission finds that incidents (6), (11),
and (13) should not have been dismissed. See Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997).
Incident (8) also must be viewed as part of a harassment claim. As such,
a portion of the claim cannot be dismissed for untimely counselor conduct,
provided that several incidents were timely. See Brown v. Department of
the Army, EEOC Request No. 05970558 (September 15, 2000). Since several
instances of harassment were timely, the agency's dismissal of incident
(8) for untimely counselor contact was improper.
Similarly, the agency should not have viewed the accepted claims
individually, outside the context of harassment, and without also
considering the incidents mentioned in claims (6), (8), (11), and (13).
The Commission cannot determine the merits of complainant's overriding
claim of harassment absent an investigation of the dismissed incidents.
Therefore, the agency's August 9, 1999 decision must be vacated for the
agency to properly address complainant's overriding claim of harassment,
taking into account all incidents alleged.
CONCLUSION
Accordingly, the agency's dismissal in 01993395 is REVERSED, and the
dismissed incidents are REMANDED for further investigation as part of
the overriding claim of harassment alleged by complainant. The agency's
finding of no discrimination, at issue in 01A02206, is VACATED, and the
incidents are REMANDED for consideration with the improperly dismissed
claims.
ORDER
The agency is ordered to process the remanded claims in accordance
with 29 C.F.R. � 1614.108. Further, the agency must consolidate the
remanded claims from this complaint with the other complaints involving
complainant's overriding claim of harassment, including those addressed in
EEOC Appeal Nos. 01A04115 and 01A05994. The agency shall acknowledge to
the complainant that it has received and consolidated 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 (M0701)
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
September 24, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant also alleged harm from breach of an EEO settlement.