01A15059_r
01-15-2002
Rickey A. Austell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rickey A. Austell v. United States Postal Service
01A15059
January 15, 2002
.
Rickey A. Austell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A15059
Agency No. 4-I-630-0113-01
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to 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.; Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.;
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The Commission accepts the appeal in accordance
with 29 C.F.R. � 1614.405.
On April 11, 2001, complainant contacted the EEO office claiming that
he was discriminated against when:
On March 11, 2000, his sick leave was disapproved, he did not get paid
for overtime worked on March 10, 2000, and he received AWOL for leave
and was told to run his route and move faster.
Informal efforts to resolve complainant's concerns were unsuccessful.
On May 22, 2001, complainant filed a formal complaint based on sex, age,
and disability.
On June 21, 2001, the agency issued a decision dismissing the complaint
for untimely EEO Counselor contact. The agency determined that the
alleged events occurred on March 11, 2000, but that complainant waited
approximately a year to contact the EEO office on April 11, 2001.
The agency also noted that complainant failed to provide a credible
explanation for the delay and that EEO posters describing the forty-five
day time limit were on display. Portions of the complaint were also
dismissed for stating the same claim that is pending before or has
been decided by the agency or Commission. In cases filed on April 30,
2001 and June 10, 1999 (Case Nos. 4-I-630-0088-01 and 4-I-630-0083-99),
complainant alleged he was discriminated against when: he was directed to
perform his route in accordance with a route inspection while others were
not and he was put off the clock due to unacceptable medical documentation
on January 10, 2001. According to the agency, the previous claims are
identical to portions of the instant case.
Untimely EEO Counselor contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
As noted above, the agency dismissed the complaint on the grounds
that complainant's April 11, 2001 EEO Counselor contact was more than
forty-five days after the alleged March 11, 2000 event. A review of
the record shows that complainant requested an appointment with an EEO
Counselor on April 11, 2001. However, the Information for Precomplaint
Counseling form contains a handwritten notation stating �See OFO decision
01A03390 dated April 4, 2001 (attached).� In the Commission's decision,
regarding a complaint filed by complainant in June 1999, the footnote
refers to �additional incidents of harassment and denial of sick
leave.� Austell v. United States Postal Service, Appeal No. 01A03390
(April 4, 2001). The Commission advised complainant to contact an EEO
Counselor if he wished to pursue the additional claims. The agency was
advised �that if complainant initiates such contact within [fifteen day
of the date that complainant received the Commission decision], the date
complainant filed his appeal raising these issues with the agency shall be
deemed to be the date of initial EEO contact ....� Id. (emphasis added)
(citing Qatsha v. Department of the Navy, EEOC Request No. 05970201
(January 16, 1998). Complainant filed his appeal on April 6, 2000,
which the agency should have considered the date of contact for the
instant complaint. Because the allegedly discriminatory events occurred
on March 11, 2000, twenty-six days earlier, we find complainant's contact
was timely. Therefore, the agency's dismissal for untimely Counselor
contact was improper.
Same claim been decided by the agency
The agency also dismissed �portions of the instant case�, without further
description, as being identical to two previously filed complaints.
The agency's decision describes the prior claims, concerning a route
inspection and being put off the clock; however, the agency has failed to
provide any documents clearly showing the issues presented in the earlier
complaints. From the instant record, it does not appear that the instant
case is identical to the claims previously raised. It has long been
established that "identical" does not mean "similar." The Commission
has consistently held that in order for a complaint to be dismissed
as identical, the elements of the complaint must be identical to the
elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No 01955890
(April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April
24, 1997). Therefore, we find that the agency's dismissal of a �portion�
of the instant case was improper.
Accordingly, the agency's decision is hereby REVERSED. The complaint
is REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims 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
January 15, 2002
__________________
Date