01983103
03-12-1999
Thomas O. Ward, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Thomas O. Ward, )
Appellant, )
)
v. ) Appeal No. 01983103
) Agency No. 1-C-151-0156-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's January 22, 1998
decision dismissing a portion of appellant's complaint. Appellant
received the agency's decision on February 6, 1998. The 30 day deadline
for filing an appeal set forth in 29 C.F.R. �1614.402(a) fell on Sunday,
March 8, 1998. The deadline is therefore extended to the next business
day which was Monday, March 9, 1998. 29 C.F.R. �1614.604(d). Appellant's
appeal was filed on March 9, 1998 and was therefore timely filed.
The agency defined the complaint as alleging that appellant was
discriminated against when:
In June 1996 appellant "was not offered higher level PS-5."
In November 1996 continuing throughout year 1997 appellant was harassed,
threatened and disciplined at the "drop of a hat."
On May 27, 1997 appellant received a 7 calendar day suspension.
On August 18, 1997 appellant received a 14 calendar day suspension.
Appellant has not challenged the framing of the complaint or the agency's
statement of the date of the incidents in the complaint.
The agency accepted allegation 4 for investigation. The agency dismissed
allegations 1 and 2 on the grounds that appellant failed to raise the
matters with an EEO Counselor. The agency dismissed allegation 3 for
untimely EEO Counselor contact.
The Commission finds that the agency properly dismissed allegation
1 pursuant to �1614.107(b). If appellant wants to pursue allegation
1, then he should contact an EEO Counselor. The Commission does not
consider in this decision whether allegation 1 was timely raised with
an EEO Counselor.
The Commission finds that the agency improperly dismissed allegation
2 for not being raised with an EEO Counselor, because allegation 2 is
clearly related to the discipline which was accepted by the agency in
allegation 4. The Commission finds, however, that allegation 2 should
be counseled so that it may be clarified. The Commission shall remand
allegation 2 for counseling and subsequent processing.
The Commission finds that allegation 3 was properly dismissed for untimely
EEO Counselor contact pursuant to �1614.107(b). Appellant should have
reasonably suspected discrimination at the time of the incident at issue
in allegation 3 which was more than 45 days before appellant contacted
an EEO Counselor.
The agency's decision dismissing allegations 1 and 3 is AFFIRMED.
The agency's decision dismissing allegation 2 is REVERSED and we REMAND
allegation 2 to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
Within 30 days of the date this decision becomes final the agency shall
notify appellant that: (1) the agency will be providing EEO counseling
to appellant regarding allegation 2 commencing no later than 60 days
after the date this decision becomes final; and (2) the agency will
process allegation 2 pursuant to 29 C.F.R. �1614.105 et seq. A copy
of the letter to appellant regarding the commencement of processing of
allegation 2 must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF 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� (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 APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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:
March 12, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations