01994627
01-29-2001
Michael L. Malone, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael L. Malone v. United States Postal Service
01994627
January 29, 2001
.
Michael L. Malone,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994627
Agency No. 4-H-335-0166-99
DECISION
Complainant timely appealed the agency's May 3, 1999 decision to dismiss
his complaint. The agency dismissed the complaint as alleging harm
from the processing of his prior complaints. In his formal complaint,
complainant alleged harm on the bases of race (Caucasian) and in reprisal
for prior EEO activity when the agency improperly processed his prior
complaints and denied him official time to speak with his representative.
To the extent that complainant alleged harm from the agency's processing
of his prior complaints, the agency's dismissal was proper. Claims of
dissatisfaction with the processing of prior complaints must be dismissed.
See 29 C.F.R. � 1614.107(a)(8).
Claims concerning the denial of official time, however, state a
claim. EEOC Regulations require agencies to grant complainants �a
reasonable amount of official time, if otherwise on duty, to prepare
the complaint. . . . � 29 C.F.R. � 1614.605(b). The Commission has
the authority to remedy such regulation violations without a finding
of discrimination. See Edwards v. United States Postal Service,
EEOC Request No. 05960179 (Dec. 23, 1996); Edwards v. United States
Postal Service, EEOC Request NO. 05950708 (Oct. 31, 1996). These claims
should not focus on whether the agency's motivation was discriminatory.
As a result, the agency should not process the complaint pursuant to 29
C.F.R. � 1614.108, but rather should focus on the agency's justification
for denying complainant a reasonable amount of official time.
CONCLUSION
Accordingly, the agency's dismissal of the prior complaint processing
claim is AFFIRMED. The agency's dismissal of the claim concerning
the denial of official time is REVERSED, and the claim is REMANDED for
further investigation as provided below.
ORDER
The agency is ordered to perform the following investigation:
Obtain an affidavit from complainant and his representative concerning
the date complainant and/or his representative was denied official time.
The agency should request that complainant provide information concerning
which complaint was involved, how much time was requested, how much
official time was allowed, and any other relevant information concerning
complainant's request.
Request that complainant and his representative submit any other materials
complainant considers relevant to the official time denial.
Obtain an affidavit from the agency officials who denied official time
to complainant and/or his representative. These officials should provide
a detailed explanation of complainant's request, and why it was denied.
The agency must complete its investigation within thirty (30) calendar
days of the date this decision becomes final. Thereafter, the agency
must issue a decision addressing whether the denial of official time
was justified. This decision must be issued within forty-five (45) days
of the date this decision becomes final, and must include appeal rights
to this Commission. The agency must provide the Compliance Officer with
a copy of the decision 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
January 29, 2001
__________________
Date