05970556
10-01-1998
John M. Puig, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John M. Puig v. United States Postal Service
05970556
October 1, 1998
John M. Puig, )
Appellant, )
) Request No. 05970556
v. ) Appeal No. 01961092
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On March 4, 1997, John M. Puig (hereinafter referred to as appellant)
initiated a request to the Equal Employment Opportunity Commission
(Commission) to reconsider the decision in John M. Puig v. Marvin
T. Runyon, Jr., Postmaster General, United States Postal Service,
EEOC Appeal No. 01961092 (January 13, 1997), received by appellant on
February 10, 1997. EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's
request is granted.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
affirmed the agency's dismissal of appellant's complaint for failure to
state a claim.
BACKGROUND
The record in this case reveals that appellant filed a formal EEO
complaint on October 5, 1995, alleging that he had been discriminated
against on the basis of his disability (ankle condition, job-related
stress, and anxiety), and in reprisal for prior EEO activity. Appellant
cited three dates on his formal complaint form: May 30, 1995, September
14, 1995, and September 19, 1995. Appellant indicated that the Plant
Manager failed to notify his supervisor of his physical limitations
and restrictions in May 1995, and denied his request for advanced sick
leave in September 1995. Appellant also referenced a confrontation he
had with the Plant Manager over the denial of his leave request.
In its final decision dated November 3, 1995, the agency dismissed
appellant's complaint for failure to state a claim. The agency
characterized appellant's complaint as alleging that the Plant Manager
"disrespected, intimidated, embarrassed, and belittled him" on September
14, 1995. The previous decision affirmed the final agency decision,
reasoning that a mere verbal exchange was insufficient to render appellant
aggrieved under the EEOC Regulations.
In his request for reconsideration, appellant asserted that his complaint
also concerned actions which occurred on May 30, 1995, and September 19,
1995. Appellant referred to incidents which occurred upon his return to
work in May 1995, indicating that he was denied reasonable accommodation.
The agency countered that appellant's request did not meet the criteria
for reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to be
reconsidered, the request must contain specific information which meets
the requirements of this regulation. For the reasons set forth below,
the Commission grants appellant's request for reconsideration.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of 29
C.F.R. �1614.103. While the previous decision focused on the September
14, 1995 confrontation with the Plant Manager, a review of the record
reveals that appellant was actually alleging, in his formal complaint,
that he was denied reasonable accommodation upon his return to work in
May 1995, and denied advanced sick leave in September 1995. As stated,
appellant specifically included the dates of those actions on the
complaint form, and referenced the matters in a statement attached
thereto. Accordingly, the Commission finds that appellant has stated
a claim of discrimination sufficient to warrant an investigation on
the merits of the allegations, and will remand the matters for further
processing.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that appellant's request meets the criteria of 29
C.F.R. �1614.407(c)(2), and it is therefore the decision of the Commission
to GRANT appellant's request. The decision in EEOC Appeal No. 01961092
(January 13, 1997), and the final agency decision are hereby REVERSED.
The agency shall comply with the terms of the Order set forth below.
There is no further right of administrative appeal on a decision of the
Commission on this Request for Reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date the agency receives this decision. The agency shall
issue to appellant a copy of the investigative file and also shall
notify appellant of the appropriate rights within one hundred fifty
(150) calendar days of the date the agency receives this decision, unless
the matter is otherwise resolved prior to that time. If the appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant and a copy
of the correspondence that transmits the investigative file and notice
of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THAT 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 REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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 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 (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:
OCT 1, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat