Brady A. Weikle, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 3, 2000
01a00368 (E.E.O.C. Apr. 3, 2000)

01a00368

04-03-2000

Brady A. Weikle, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Brady A. Weikle, )

Complainant, )

)

v. ) Appeal No. 01A00368

) Agency No. 4D-250-0112-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On October 13, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) issued on September 14,

1999, pertaining to his 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> In his complaint, complainant alleged that

the agency discriminated against him based on reprisal when: (1) on August

19, 1998, he was subjected to harassment by the Regional Administrator;

(2) on August 22, 1998, the Administrator ordered him to the Employee

Assistance Program (EAP); (3) on August 24, 1998, he did not receive

any response to his complaints that his wife who also worked at the

same agency facility was being sexually harassed; (4) on August 31,

1998, complainant was again referred to EAP; (5) on September 1, 1998,

complainant was told that he could not file an EEO complaint and had to

file a charge of discrimination with the Commission; (6) on September

3, 1998, he was assaulted by the Postmaster; (7) on September 4, 1998,

his contract with the agency was terminated; and (8) on September 16,

1998, he received a final decision letter which told him he could not

appeal his termination.

The agency dismissed his complaint pursuant to EEOC Regulation 64

Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred

to as 29 C.F.R. � 1614.107(a)(2)). Under 29 C.F.R. � 1614.107(a)(2),

the agency shall dismiss a complaint or a portion of a complaint

that fails to comply with the applicable time limits contained in 64

Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred

to as 29 C.F.R. � 1614.105), 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter referred to as 29 C.F.R. � 1614.106), and �

1614.204(c), unless the agency extends the time limits in accordance

with � 1614.604(c).

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO Counselor within forty-five (45)

days of the date of the matter alleged to be discriminatory or, in the

case of a personnel action, within forty-five (45) days of the effective

date of the action. EEOC Regulation 29 C.F.R. � 1614.105(a)(2) allows

the agency or the Commission to extend the time limit if complainant

can establish that complainant was not aware of the time limit; that

complainant did not know and reasonably should not have known that the

discriminatory matter or personnel action occurred; that despite due

diligence, complainant was prevented by circumstances beyond his control

from contacting the EEO Counselor within the time limit; or for other

reasons considered sufficient by the agency or Commission.

The EEO counselor's report indicates that complainant contacted an EEO

counselor on June 18, 1999, regarding his claims of discrimination.

On appeal, complainant states that he was misled by the agency when he

was told that he could not file an EEO complaint. He therefore contacted

the EEOC and timely filed a charge of discrimination. The charge was

returned to him and complainant was told to file a complaint through the

EEO process on May 28, 1999. The Commission finds that the complainant

was initially given incorrect information, however when he received the

corrected information, complainant contacted the EEO counselor to begin

the EEO process. Accordingly, the Commission finds that the agency

improperly dismissed complainant's complaint for untimely EEO contact.

CONCLUSION

Accordingly, the Commission REVERSES the agency's final decision and

REMANDS it for further processing in accordance with this decision and

the proper regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded claims 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 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 an

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)

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:

April 3, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.