01A03144_remand
07-31-2002
Shirley McNeal-Alexander, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area) Agency.
Shirley McNeal-Alexander v. United States Postal Service
01A03144; 01A11694; 01A12192; 01A21295 and 01A22837
July 31, 2002
.
Shirley McNeal-Alexander,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area)
Agency.
Appeal Nos. 01A03144; 01A12192; 01A11694;
01A21295; 01A22837
Agency Nos. 4F-907-0100-99; 4F-907-0070-00; 4F-907-0102-00;
4F-907-0185-00; 4F-907-0149-01
DECISION
Complainant timely initiated five appeals from five final agency decisions
(FAD) concerning her complaints of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeals are accepted pursuant to 29 C.F.R. �
1614.405 and consolidated pursuant to 29 C.F.R. � 1614.606. For the
following reasons, the Commission AFFIRMS the agency's final decisions,
in part and REMANDS, in part.
The record reveals that during the relevant time, complainant was
employed as a Modified Clerk<1> at the agency's Long Beach Processing and
Distribution Center, Long Beach, California facility. Complainant sought
EEO counseling and subsequently filed a formal complaint on April 26, 1999
(Complaint 1), February 28, 2000, (Complaint 2), April 5, 2000 (Complaint
3), October 8, 2000 (Complaint 4) and July 16, 2001 (Complaint 5).
In Complaint 1, complainant alleged that she was discriminated against
on the bases of race (Black), sex (female), disability (back/neck), age
(D.O.B. 12/25/49), and reprisal (prior EEO activity) when, on January 5,
7, 11, 12 and February 1 and 19, 1999, she was subjected to a hostile work
environment and harassed in front of postal customers. Specific incidents
of alleged harassment include:
Complainant's managers were hostile toward her;
All calls had been changed to rollover to complainant's desk;
Complainant was harassed by her manager in front of the customers;
Complainant was not given an award when two of her co-workers received
an award;
Complainant was given a rehabilitation job that reduced her seniority;
Complainant's calls were being recorded;
Co-workers and supervisors would come up to complainant's desk every
20-40 minutes; and
Complainant was being monitored when she clocked in or out.
In Complaint 2, complainant alleged that she was discriminated against
on the bases of race (Black), sex (female), disability (back/neck), age
(D.O.B. 12/25/49), and reprisal for prior EEO activity when:
On September 23, 1999, complainant was instructed to continue to �buzz�
employees in the front door if not busy even though all employees know
the code and are responsible for buzzing themselves in;<2>
On unspecified date(s), complainant was a victim of harassment through
the phones, receiving harassing calls, and her calls are recorded;
Since September 1998, complainant has been a victim of conspiracy,
segregation, and surveillance;
On January 7, 2000, complainant was called into a meeting with her
manager and was accused of not being cordial because she did not respond
to co-workers when they asked her how she is feeling or doing;
On January 7, 2000, complainant was harassed by her manager for paging
expedited mail for a phone call from an irate customer and she was told
by the manager to transfer such calls to the manager or put them through
to the manager's voice mail;
On an unspecified date, the manager ordered the complainant that, when
someone is not available, to tell customers that the person is busy
with other customers which is not always true. Complainant claims that
telling her how to answer customers over the phone is harassment; and
On December 7, 1999, complainant's manager gave her a new telephone
assignment for calls forwarded from any department in marketing depending
on the availability of the employees.
In Complaint 3, complainant alleged that she was discriminated against
on the bases of race (Black), sex (female), disability (back/neck), age
(D.O.B. 12/25/49), and reprisal for prior EEO activity when from January
10, 2000 through February 23, 2000:
Her first choice for vacation was disapproved;
The rules of seniority were not followed;
There was sexual harassment and abuse of power;
Family and Medical Leave Act (FMLA) rules were violated; and
Calls were not being forwarded properly.
In Complaint 4, complainant alleged that she was subjected to a hostile
work environment on the bases of race (Black), sex (female), disability
(back/neck and stress), age (D.O.B. 12/25/49), and reprisal (prior EEO
activity) when:
She was told to stop listening to her head-set, because she was heard
saying �Praise the Lord� and �Hallelujah;�
She was told that she did not like her job;
She was accused of transferring calls to her manager, when the manager
was having a meeting;
She was told that she was not receiving a lot of calls, so she would
become the relief for all departments;
The agency engaged in unspecified sexual harassment/hostile work
environment;
She was not allowed to have a union representative at a meeting with
the Manager, Marketing (unspecified date);
She was sent home on administrative leave from February 5 - 8, 2001 for
saying �God Bless You,� on the telephone, denied written instructions not
to say �God Bless You� on the telephone and threatened with termination
for saying �God Bless You;�
She was placed in AWOL status when she called in for FMLA leave;
Her privacy was violated when the Manager, Marketing gave complainant's
PS Forms 3971 to another employee to deliver to complainant; and
From January19, 2001 to February 20, 2001, her privacy was violated
when the Manager, Marketing gave complainant's pay check stub to another
employee to deliver to complainant.
In Complaint 5, complainant alleged that she was discriminated against
and subjected to a hostile work environment on the bases of race (Black),
sex (female), disability (back/neck and stress), age (D.O.B. 12/25/49),
and reprisal (prior EEO activity) when:
Her Weingarten Rights were violated<3>;
Her rehabilitation job was withdrawn and the new job was not within
her medical restrictions;
She was harassed to fill out a PS Form 3971 and PS Form 1216 and
threatened with discipline although she was at home on stress leave;
Local and National American Postal Workers' Union (APWU) condoned
discrimination;
The EEO Dispute Resolution Specialist caused complainant additional
stress by calling her three times to obtain her signature on a withdrawal
form;
On May 17, 2001, complainant was told by her manager that her medical
restrictions could not be accommodated and she was sent home;
On an unspecified date, complainant was denied FMLA leave;
On an unspecified date, complainant was threatened with discipline
and required to fill out a light duty request for a non-job related
injury/illness even though her injury was allegedly job related;
On an unspecified date, complainant's work hours were changed to night
hours; and
On August 28, 2001, complainant was issued an �Options Letter� in which
she was advised that if she did not apply for disability retirement
or resign, she would be removed from the agency effective September
30, 2001.
Analysis and Findings
Complaint 2
As an initial matter, we note that the agency partially dismissed several
claims raised by complainant in Complaint 2. Specifically, on May 30,
2000, prior to the completion of the investigation, the agency dismissed
claims 1 and 3 on the grounds that complainant failed to initiate contact
with an EEO Counselor in a timely manner. The agency determined that
complainant's EEO contact with regard to claim 1 was 50 days after the
expiration of the 45-day limitation period.
The agency dismissed claim 3 as untimely, in addition to the ground that
it states the same claim that is pending before or has been decided by the
agency or the Commission. According to the agency, complainant claimed
in Complaint 1 that she was subjected to harassment and a hostile work
environment in January and February 1999. The agency stated that it
issued a decision concerning Complaint 1 on February 7, 2000, and that
complainant filed an appeal with the Commission.
The agency dismissed claims 4 and 5 on the ground of failure to state
a claim. The agency determined that complainant did not suffer harm or
a concrete effect on her employment as a result of the alleged incidents.
Upon review of the record, we find deficiencies in the investigation.
Specifically with respect to claim 3, we note that there is no
description of the specific incidents that are reflected in this claim
of conspiracy, segregation, and surveillance. Further, there are no
dates referenced for these incidents other than the indication that
they commenced in September 1998. Nonetheless, it is evident from the
record that complainant is claiming that she has been subjected to a
pattern of harassment. The agency improperly addressed Complaint 2 in
a piecemeal fashion. The agency's dismissal of a portion of Complaint
2 on the grounds of untimely EEO Counselor contact and failure to state
a claim addressed the incidents separately rather than in the context
of an alleged pattern of harassment. We find that all of the alleged
incidents need to be addressed as one alleged pattern of harassment.
Accordingly, we find the dismissal of claims 1, 3, 4 and 5 improper.
Complaints 1-5
Moreover, upon review of the claims alleged in all five complaints
it appears that the overwhelming majority of claims among all five
complaints raise harassment claims (in addition to other claims) that
are sufficiently like or related to necessitate the consolidation of all
five complaints. We find that the agency improperly fragmented multiple
claims over several complaints.<4> See 29 C.F.R. 1614.606. See also,
EEOC Management Directive 110, p. 5-5 through 5-14 (November 9, 1999).
Accordingly, all five complaints shall be remanded to the agency for
consolidation and supplementation of the investigative reports<5>,
issuance of hearing rights<6>, and issuance of one final action or final
decision, depending on whether complainant elected a hearing or FAD.
Complaint 4
Lastly, with respect to the claims dismissed by the agency in Complaint 4,
we find that the agency correctly dismissed claims 1, 4 and 5. Claims 1
and 4 deal with complainant's right to union representation during a
pre-disciplinary discussion. The proper forum for complainant's complaint
regarding union representation and Weingarten rights is the negotiated
grievance process, not the EEO complaint process. See Simensen v. United
States Postal Service, EEOC Appeal No. 01A21068 (February 26, 2002).
Claim 5 deals with complainant's dissatisfaction with the processing of
her instant complaint during the pre-complaint processing. Accordingly,
the agency correctly dismissed this claim in accordance with 29 C.F.R. �
1614.107(a)(8). See EEO Management Directive 110, p. 5-25 and 5-26
(November 9, 1999).<7>
Accordingly, for the reasons set forth above, the Commission shall affirm
the dismissal of claims 1, 4, and 5 in Complaint 4, and remand all other
matters to the agency as set forth below.
ORDER
Within 45 days from the date this decision becomes final, the agency shall
supplement the investigative reports pertaining to Complaints 1-5, by,
inter alia: (a) correctly identifying the claims that make up a pattern
of harassment; (b) correctly identifying any disparate treatment claims;
(c) correctly identifying any reasonable accommodation claims; (d)
requesting specific information from complainant in order to better
understand the details of her claims; and (e) obtaining supplemental
affidavits and rebuttal affidavits, if new information obtained has not
been addressed by relevant witnesses.
Within 45 days from the date this decision becomes final, the agency
shall consolidate the investigative reports pertaining to Complaints
1-5, including issuing a new summary of investigation which shall cover
all claims;
Following the completion of the investigation, the agency shall provide
complainant a copy of the investigative report which shall include
a notice of the right to request a hearing in accordance with 29
C.F.R. �1614.108(f); and
Depending on whether complainant requests a hearing or FAD, the agency
shall issue a Final Action or Decision in accordance with the Commission's
regulations.
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 (T0900)
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, Director
Office of Federal Operations
July 31, 2002
__________________
Date
1 Complainant was a rehabilitation employee
since 1981. In 1999 she accepted a rehabilitation job where she performed
receptionist duties.
2 On May 30, 2000, the agency dismissed claims 1, 3, 4 and 5.
3The agency issued a Partial Acceptance/Dismissal dated July 30, 2001
dismissing claims 1, 4 and 5.
4 The agency concluded that complainant failed to prove discrimination
or reprisal with respect to all claims.
5 The agency must consolidate all claims alleged in Complaints 1-5
and issue a new investigative report after correctly identifying the
claims that are part of an allegation of a pattern of harassment, in
addition to correctly identifying the disparate treatment and reasonable
accommodation claims herein. The agency should note that the Commission
observes numerous deficiencies in the investigation and encourages the
agency to obtain more detailed information. For example, the agency
obtained few details (i.e., dates, numbers of occurrences, witnesses)
with respect to the claims alleged in Complaints 1 and 3. In addition,
in Complaint 2, claim 2, there is no indication as to whether complainant
was asked to provide dates when her calls were recorded and when she
received harassing calls. With respect to Complaint 2, claim 6, there
is no indication that complainant was asked to provide the date that
she was instructed how to answer customers over the telephone.
6 While the record shows that complainant was previous provided hearing
rights with the receipt of each investigative report and that complainant
either failed to request a hearing or affirmatively requested a FAD,
complainant was never provided hearing rights on the claims dismissed
by the agency in Complaint 2. Accordingly, following the consolidation
and supplementation of the investigative report, complainant shall be
provided with hearing rights in accordance with 29 C.F.R. � 1614.108(f).
7 While the dismissal is correct, in cases where the complainant's
concerns have not been resolved informally with the agency, she may
present those concerns to the EEOC at either the hearing stage or on
appeal to the Commission, depending on whether complainant requests
a hearing. Id.