05981139
02-02-2001
Franklin D. Nicoloudakis v. United States Postal Service 05981139 February 2, 2001 . Franklin D. Nicoloudakis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Franklin D. Nicoloudakis v. United States Postal Service
05981139
February 2, 2001
.
Franklin D. Nicoloudakis,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05981139
Appeal No. 01980048
Agency No. 1-A-086-1029-96
GRANTING OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Franklin
D. Nicoloudakis v. United States Postal Service, EEOC Appeal No. 01980048
(July 24, 1998),<1> which affirmed the agency's final decision.
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision where the requesting party
demonstrates 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. 29 C.F.R. � 1614.405(b). For the reasons set forth herein,
complainant's request is granted.
Complainant initiated contact with an EEO Counselor with regard to
the three complaints at issue on March 25, 1996, January 3, 1997, and
February 11, 1997. In a formal EEO complaint dated March 13, 1997,
(Agency No. 1A-086-0020-97), complainant claimed that he had been
discriminated against on the bases of his disability (back and foot),
national origin (Greek), and in reprisal for previous EEO activity when
on December 27, 1996, he became aware that during pay period 26/96,
his request for leave without pay (LWOP) in lieu of sick leave was not
honored and instead he was paid for 20 hours of annual leave and 12 hours
of sick leave. In another formal EEO complaint dated March 13, 1997,
(Agency No. 1A-086-0021-97), complainant claimed discrimination on the
same bases as the aforementioned complaint when on February 7, 1997,
he became aware that during pay period 3/97, his request for LWOP in
lieu of sick leave was not honored and instead he was paid for 36 hours
of annual leave and 4 hours of sick leave. In a formal EEO complaint
dated July 27, 1996, (Agency No. 1A-086-1029-96), complainant claimed
discrimination on the aforementioned bases when on March 26, 1996,
management denied his request that all of his PS Forms 3971, Request
for or Notification of Absence, dated after January 1996, be changed to
read �LWOP in Lieu of Sick�. Complainant requested as relief in each
complaint that his annual leave and sick leave be completely restored
without any cost to him. Complainant also requested that an injunction
be issued prohibiting further charges against his leave balance without
his consent, and that disciplinary action be imposed on the General
Supervisor, PSDS Operations.
The agency extended settlement offers to complainant with regard to
each complaint. The agency certified that the proposed settlements
were offers of full relief. Complainant was advised that if the offers
of full relief were not accepted within thirty calendar days, a final
agency decision would be issued dismissing his complaints.
In its decision dated August 5, 1997, the agency consolidated the three
complaints under Agency No. 1A-086-1029-96 and dismissed the complaints
for failure to accept a certified offer of full relief. The agency
determined that complainant failed to respond to the offers within the
30-day time frame. Thereafter, complainant filed an appeal with the
Commission.
In the previous decision, the Commission affirmed the agency's decision.
Thereafter, complainant filed the instant request for reconsideration.
Complainant contends that the agency failed to offer him restoration of
the full amount of leave to which he is entitled. Complainant claims
that the agency did not include in its settlement offers the 78.66
hours of sick leave that he was charged during periods in 1993 and 1994.
In response, the agency asserts that complainant has failed to satisfy
the criteria of a request for reconsideration.
On November 9, 1999, after the issuance of the previous decision,
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.
Under these revisions, the Commission eliminated the dismissal basis of
failure to accept a certified offer of full relief from the regulations.
See 64 Federal Register 37,644, 37,645 (1999). In other words,
agencies may no longer dismiss administrative EEO complaints due to
a complainant's failure to accept a certified offer of full relief.
Any dismissal on the grounds of failure to accept a certified offer of
full relief is now improper under the revised regulations. Therefore,
we find that as a result of applying our revised regulations to the
instant matter, the prior decision must be reversed and the agency's
grounds for dismissal is no longer appropriate. See Michael L. Dailey
v. Department of the Navy, EEOC Request No. 05981032 (May 26, 2000).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the request meets the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to grant the request. The decision of
the Commission in EEOC Appeal No. 01980048 is hereby REVERSED, and the
agency's decision dismissing the consolidated complaint is REVERSED.
The consolidated complaint is REMANDED to the agency for further
processing in accordance with this decision and the Order set forth
herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 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 (K0900)
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)(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 29 C.F.R. � 1614.409.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
February 2, 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
______________________________
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.