01A45809
01-10-2005
Karl M. Oertel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Karl M. Oertel v. United States Postal Service
01A45809
01-10-05
.
Karl M. Oertel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45809
Agency No. IB-141-0023-04, IB-141-0030-04
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decisions dated July 23, 2004, and August 12, 2004, dismissing
his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of disability and reprisal for prior EEO activity when
beginning January 3, 2004, through the present, he was subjected to
threats, denied overtime, denied payment of Continuation of Pay (COP),
accused of being non-productive, denied the use of proper equipment, a
postal nurse improperly disclosed his medical information, and during a
fitness-for-duty examination conducted on July 6, 2004, an inappropriate
religious remark was made.
The record reveals that during EEO counseling on March 26, 2004,
complainant raised an ongoing claim of discriminatory harassment
and a �constructive suspension� claim, whereby he was forced to use
leave during the period August 27 through September 26, 2002.<1> The
�construction suspension� claim was identified as a �mixed case� claim.
The agency bifurcated complainant's claim. It assigned EEO Complaint
Number 1B-141-0023-04 to the discriminatory harassment claim and
the �constructive suspension� claim was assigned as Complaint Number
1B-141-0030-04. The
record reflects that when complainant filed his formal complaint, he
used the complaint number associated with the �constructive suspension�
claim rather than the harassment claim.
The agency dismissed complaint number 1B-14-0030-04 for stating the same
claim as was raised in complaint number 1B-141-0023-04. Upon receipt of
the agency's dismissal of complaint number 1B-141-0030-04, complainant
filed a formal complaint on July 29, 2004, on complaint number
1B-141-0023-04, claiming an ongoing pattern of discrimination on his
perceived mental disability and in retaliation for prior EEO activity,
when beginning January 3, 2004 through the present, he was subjected
to harassment. The agency dismissed complainant's complaint as untimely.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) requires that prior to a
request for a hearing in a case, the agency shall dismiss an entire
complaint: that fails to state a claim or states the same claim that
is pending before or has been decided by the agency or Commission.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a
written complaint with an appropriate agency official within fifteen
(15) calendar days after the date of receipt of the notice of the right
to file a formal complaint.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall
dismiss a complaint that fails to comply with the applicable time limits
contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency
extends the time limits in accordance with � 1614.604(c).
The record in this case indicates that complainant received a notice of
the right to file a formal discrimination complaint on June 18, 2004.
The notice informed complainant that he had fifteen days from the
date of receipt of the notice in which to file a formal complaint.
Complainant filed his formal complaint on June 24, 2004. The record
shows that complainant used the complaint number associated with the
constructive discharge claim but described the harassment claim. The
Commission finds that the agency erred when it dismissed the harassment
complaint for stating the same claim that was pending before the agency.
We note that EEOC Regulation 29 C.F.R. � 1614.106 (c) provides that a
complaint must contain a signed statement from the person claiming to be
aggrieved or that person's attorney. This statement must be sufficiently
precise to identify the aggrieved individual and the agency and to
describe generally the action(s) or practice(s) that form the basis of
the complaint. The complaint must also contain a telephone number and
address where the complainant or the representative can be contacted.
We find it should have been clear to the agency that complainant's
formal complaint involved the harassment claim. We find the fact that
the incorrect case number was used is irrelevant. Accordingly, we remand
this case for further processing as described below.
ORDER (E0900)
The agency is ordered to process the remanded claim of harassment 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 (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
_____01-10-05_____________
Date
1 The record reveals that on or about June
21, 2004, the agency was told that complainant would not file a formal
complaint with respect to the mixed case complaint.