0120114262
02-10-2012
Nancy Morrow, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Nancy Morrow,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120114262
Agency No. 4J-606-0096-11
DECISION
Complainant filed a timely appeal with this Commission from a final Agency
decision (FAD) on dated August 11, 2011, dismissing her complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
a Sales, Services & Distribution Associate at the Agency’s Fort
Dearborn Station in Chicago, Illinois. She filed a formal complaint,
as amended, dated June 19, 2011, which the Agency defined as alleging
it discriminatorily harassed Complainant based on her age (40 & 41) when:
1. she was put on leave without pay (LWOP) on September 24, 2010;
2. her request for two weeks of annual leave from January 7-21, 2011
was denied;
3. on March 31, 2011, she was issued a 7 day suspension;
4. on June 15, 2011, her start time was changed by one hour;
5. since June 19, 2011, her schedule was altered;
6. she was written up two or three times; and
7. she was denied a vacation; all to inconvenience and harass her.
The Agency accepted issues 1 through 4 for investigation. Soon after the
investigation started Complainant filed an Information for Pre-Complaint
Counseling form (intake) alleging reprisal for prior EEO activity.
The Agency did not accept the intake issues for investigation. Rather, it
defined and listed them as issues 5, 6 and 7 in its August 11, 2011 FAD.
The Agency dismissed the complaint on the ground that Complainant filed a
civil action in the United States District Court for the Northern District
of Illinois on June 27, 2011, with claims that she was subjected to
harassment and a hostile work environment that were the same or derived
and inexorably intertwined with those raised in her administrative EEO
complaint. The Agency was referring to civil action 1:11-cv-04349.1 In
dismissing the complaint, the Agency cited 29 C.F.R. § 1614.107(a)(3).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(3) reads in part that prior to
a request for a hearing in a case, the agency shall dismiss an entire
complaint that is the basis of a pending civil action in a United States
District Court in which the complainant is a party, or that was the
basis of a civil action decided by the United States District Court in
which the complainant was a party.
A close review of Complainant’s civil action reveals that she alleged
discriminatory harassment, and it concerned incidents which occurred
from 2006 to March 31, 2010. The administrative EEO complaint involves
incidents which occurred thereafter. Accordingly, we find that the
administrative EEO complaint was not the basis of a civil action, and
the Agency’s dismissal is reversed.
A close review of the administrative EEO complaint, in association with
her underlying intake form and two subsequent intake forms which the
Agency used in defining the complaint, as amended, shows Complainant is
also alleging reprisal discrimination for engaging in prior EEO activity.
Further, in response to a letter from the Agency partially defining
her complaint, Complainant indicated that issue 1 is not part of her
complaint,2 and issue 2 included not being scheduled for a vacation
from July 10 – 21, 2011. Our review of the complaint and intake forms
reveals that Complainant variously contended that her schedule time was
changed in May 2011 and June 15, 2011.
On appeal, Complainant suggests that she disagrees with the
characterization of issues the Agency added as amendments, writing the
Agency was trying to discredit her without her authorization. The amended
issues were 4 through 7. Complainant should be given an opportunity to
clarify her claims. The Order below addresses the actions the Agency
must take.
The Agency’s decision to dismiss Complainant’s complaint is REVERSED.
ORDER
The Agency shall take the following actions:
1. The Agency shall cease processing issue 1 as an independent issue
because Complainant indicated this was not part of her complaint.
2. The Agency shall add reprisal for prior EEO activity as a basis for
Complainant’s entire complaint.
3. The Agency shall provide Complainant a letter giving her an opportunity
to clarify portions of her complaint. The following matters need
clarification. It is unclear whether issue 2 includes Complainant not
being put on the schedule to take a vacation from July 10 – 21, 2011.
While Complainant alleged reprisal discrimination for amended issues 4
through 7, it is unclear whether she was also alleging age discrimination
on them. It is unclear whether issues 4 and 5 refer to separate
matters and if their dates are correct. It is unclear what write-ups
Complainant is referring to in issue 6, and it not clear whether issue 7
is duplicative of issue 2. It is also unclear whether Complainant wishes
all her amended claims to be processed as independent actionable claims.
4. After giving Complainant an opportunity to clarify her complaint,
as amended, the Agency shall issue a new letter to her setting forth
the claims and identifying which ones are accepted for investigation,
and which ones, if any, are dismissed.
5. The Agency shall complete all the above actions within 30 calendar
days after this decision becomes final. Thereafter, the Agency shall
process Complainant’s complaint in accordance with 29 C.F.R. Part 1614.
A copy of the Agency’s letter as set out in item 4 of this order must
be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 10, 2012
__________________
Date
1 On November 18, 2011, the District Court dismissed Complainant’s
civil action as frivolous. Complainant filed an appeal to the United
States Court of Appeals for the Seventh Circuit, which dismissed the
appeal on December 16, 2011.
2 The Agency in the seven day suspension letter charged Complainant
had multiple unscheduled absences, including LWOP on October 3, 2010.
Complainant contended she made a request which was approved to work on
her regular day off of September 24, 2010 in exchange for being off on
October 3, 2010. The Agency did not charge Complainant in the suspension
letter with an unscheduled absence on September 24, 2010.
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0120114262
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114262