01a02752
06-24-2002
Lalo Rios, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lalo Rios v. United States Postal Service
01A02752
06-24-02
.
Lalo Rios,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02752
Agency No. 4F-920-0048-98
DECISION
On May 27, 1999, Lalo Rios (hereinafter referred to as complainant)
filed a timely appeal from the May 13, 1999, final action of the
United States Postal Service (hereinafter referred to as the agency).
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405. For the reasons that follow,
the agency's decision is reversed.
On April 15, 1999, complainant sought EEO counseling, claiming that the
agency failed to post several vacancy announcements at his place of work,
thus denying him an opportunity to apply for these positions. On May 13,
1999, the agency advised complainant that his request for counseling was
more properly treated as a claim of breach of the settlement agreement
(SA) dated June 30, 1998, and finding that it had not breached the SA.<1>
Before us is the agency's file of the above-referenced complaint number,
including a Final Agency Decision dated July 21, 1998. We note that
the decision on Complaint No. 4F-920-0048-98 was issued after the SA
and did not refer to the SA.
Initially, with regard to the instant appeal, we find nothing in the
record to indicate that the agency's letter of May 13, 1999, is correct.
The SA does not resolve or refer to any issue or subject matter regarding
the posting of positions, and, thus, we cannot agree with the agency that
complainant's request for EEO counseling is a claim of breach.<2> We
conclude, therefore, that the agency denied complainant EEO counseling,
and it is directed to afford him counseling with regard to his request
of April 15, 1999, including the similar claims raised on April 14,
June 19, and June 29, 1999. In addition, based on the record before us,
we find that complainant is alleging new claims regarding new postings,
not previously raised before the agency.
CONCLUSION
Accordingly, the agency's decision is reversed, and the complaint is
remanded for continued processing. The agency is directed to comply
with the Order, below, in an expeditious manner.
ORDER
The agency is ordered to contact complainant to provide him an
opportunity for counseling in accordance with this decision within
thirty (30) calendar days of the date this decision becomes final.
Thereafter, the agency shall process his claims in accordance with the
Commission's regulations. 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
___06-24-02_______________
Date
1The SA referenced three complaint numbers, 4F-920-0048-98; 0161-98;
and 0148-98. We will consider the agency's letter dated May 13, 1999,
which addressed complainant's claims and afforded him rights to appeal,
the agency's final action in this appeal.
2We note, however, that the SA stated that complainant and an agency
manager would meet to resolve No. 4F-920-0161-98, which had alleged
discrimination when the agency failed to post certain vacancy
announcements.