01974805
10-30-1998
Doyle A. Staten, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Doyle A. Staten, )
Appellant, )
)
v. ) Appeal No. 01974805
) Agency No. 4-G-770-0251-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant filed an appeal from a final decision of the
agency concerning his consolidated 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. The final decision was dated May
6, 1997, and the appeal was filed on May 28, 1997. Accordingly, the
appeal is timely (see 29 C.F.R. �1614.402), and is accepted pursuant to
29 C.F.R. �1614.401(a).
ISSUE PRESENTED
Whether the agency properly dismissed allegations in the appellant's
consolidated complaint on the grounds that he failed to discuss the
allegations with an EEO Counselor.
BACKGROUND
According to the final agency decision, the appellant filed one EEO
complaint on February 15, 1997 (4-G-770-0251), a second EEO complaint on
March 4, 1997 (4-G-770-0265-97), and a third EEO complaint on March 8,
1997 (4-G-770-0252-97). The agency consolidated complaints 1, 2 and 3
under case number 4-G-770-0251.
In its final decision, the agency characterized complaint 1 as alleging
that the appellant was discriminated against on the bases of race
and color (Caucasian/white), sex (male) and reprisal (EEO activity)
when (1) on January 13, 1997, he was placed off the clock, and (2) on
January 21, 1997, management refused to give him copies of statements
made against him. The agency accepted these issues, stating they were
the only ones discussed with the EEO counselor. The counselor's report
for complaint 1 indicated that complaint 1 concerned allegation 1,
and complaint 3 concerned allegation 2.
With regard to the consolidated complaint as a whole, the agency found
that other unspecified issues were not discussed during counseling, and
hence would not be accepted at that time. With regard to these issues,
the agency advised the appellant to contact an EEO counselor within 15
days of his receipt of the final agency decision if he wished to discuss
them with a counselor. The agency indicated that the date of contact
for the purpose of determining timeliness would be February 15, 1997,
the date of the complaint.
The record does not contain complaints 2 and 3, nor indicate whether
there is more than one counselor's report. On appeal, the appellant
makes no comment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. EEOC Regulations further direct an EEO Counselor
to inform a complainant that only matters related thereto may be raised
in a subsequent complaint filed with the agency. 29 C.F.R. �1614.105(b).
The appellant does not contest the final agency decision's definition
of complaint 1, and its acceptance of that complaint as defined.
Accordingly, this portion of the final agency decision is affirmed.
The record contains insufficient documentation to allow an independent
review of the remainder of the final agency decision. First, it fails
to specify the issues which were not accepted. Further, the record does
not contain complaints 2 and 3, nor indicate whether separate counselor's
reports were issued in connection with them. It also does not provide the
dates the appellant contacted an EEO counselor with regard to complaints
2 and 3, nor indicate what was discussed with an EEO counselor with
regard to them, if anything. Accordingly, the remainder of the final
agency decision is vacated, and remanded in accordance with the action
ordered below.
CONCLUSION
For the reasons stated above, the agency's decision is MODIFIED.
ORDER
With regard to the remanded allegations, the agency shall supplement
the record with copies of complaints 2 and 3, and the counselor's
reports issued in connection with them, if any. This shall include any
reports issued before and after the final agency decision was issued.
If counselor's reports were not issued in connection with complaints 2
and 3, the agency shall specifically state so, and provide information
on when the appellant contacted EEO counselor(s) and what he discussed
with the counselor(s) with regard complaints 2 and 3, if anything.
This information shall cover any discussions with EEO counselor(s) both
before and after the final agency decision was issued. The agency shall
copy the above supplementation to the appellant. Thereafter, the agency
shall accept or dismiss complaints 2 and 3, in whole or part.
The agency shall complete the above actions within 60 calendar days
after this decision becomes final.
A copy of the agency's notice that transmits the supplementation of
the record to the appellant, as well as the agency's letter or decision
accepting or dismissing complaints 2 and 3 shall be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 30, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations