01a54385
10-14-2005
Franklin Martin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Franklin Martin v. United States Postal Service
01A54385
October 14, 2005
.
Franklin Martin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54385
Agency No. 4C-270-0053-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 12, 2005, dismissing his complaint of unlawful
employment discrimination. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of sex (male),
disability (psychiatric condition), age (date of birth: March 29,
1958), and reprisal for prior EEO activity when, on February 11, 2005,
complainant learned that he was charged 37.70 hours of leave without pay
(LWOP) when he should have been charged with 37.70 hours of approved
Family and Medical Leave Act (FMLA) sick leave.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim.
The record reveals that, on April 8, 2005, the agency submitted
a pay adjustment request to correct the error. The pay adjustment
requested that complainant's pay for the week in question, January 29,
2005, through February 4, 2005, be adjusted to 40 hours of sick leave
(FMLA). Although the agency stated that the pay adjustment was made
and reflected in complainant's actual pay record for PP 05-08 (04/02/05
thru 04/15/05), the agency has not identified any record which clearly
identifies the change in hours for LWOP and sick leave. Therefore, the
Commission shall remand the complaint so that the agency may provide
copies of complainant's earning and leave statements before and after
the pay adjustment in April 2005, showing the change in hours for LWOP
and sick leave.
Accordingly, the agency's decision dismissing complainant's complaint
is VACATED and the complaint is REMANDED for further processing in
accordance with the Order below.
ORDER
The agency shall place into the record a copy of complainant's earning
and leave statements before and after the pay adjustment in April
2005, showing the change in hours for LWOP and sick leave. The record
shall clearly identify with specificity the hours that here changed in
complainant's LWOP and sick leave records. Within 30 calendar days of
the date this decision becomes final, the agency shall either issue a
letter to complainant accepting the complaint for investigation or issue
a new decision dismissing the complaint. A copy of the agency's letter
accepting the complaint for investigation or the new decision dismissing
the complaint must be sent to the Compliance Officer as referenced herein.
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 14, 2005
__________________
Date