01A41166_r
04-29-2004
Vandi Feika, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Vandi Feika v. United States Postal Service
01A41166
April 29, 2004
.
Vandi Feika,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41166
Agency No. 1C-281-0099-03
DECISION
Complainant initiated contact with the agency's EEO Office on September
17, 2003. On October 10, 2003, complainant filed a formal EEO complaint
wherein he claimed that he was discriminated against on the bases of his
race (unspecified), national origin (Sierra Leone), and in retaliation for
his previous EEO activity. The agency defined the alleged incidents as
being from January 2003 until July 22, 2003, complainant was subjected
to disparate treatment, and on July 22, 2003, complainant received
a letter stating his employment with the agency had been terminated.
In his complaint, complainant referred to the letter of termination
and also claimed that in January 2003, he was singled out for reading a
newspaper, in February 2003, he was transferred to the west dock area to
perform more physically demanding work, and in May 2003, his supervisor
assigned him overtime.
By decision dated October 27, 2003, the agency dismissed the complaint
on the grounds that complainant failed to initiate contact with an EEO
Counselor in a timely manner. The agency determined that complainant's
EEO contact on September 17, 2003, was more than 45 days after the
alleged incidents occurred during the period of January 2003 to July
22, 2003. The agency determined that complainant provided no evidence
that he was not aware of the time limit for contacting an EEO Counselor.
The agency noted that complainant has previously engaged in EEO activity.
Further, the agency stated that an agency official's affidavit attests
to an EEO poster being on display at complainant's facility.
On appeal, complainant contends that he did not receive the letter
terminating his employment until August 21, 2003. According to
complainant, he was out of the country from July 24, 2003 through August
19, 2003. Complainant argues that since he did not receive the letter
until after he returned to the United States, his EEO contact on September
17, 2003, was within the 45-day limitation period.
In response, the agency asserts that complainant has offered no evidence
justifying an extension of the 45-day limitation period for initiating
contact with an EEO Counselor. According to the agency, complainant
previously claimed in Agency No. 1C-281-0055-03 that he was discriminated
against based on his national origin and in reprisal for his prior EEO
activity under Title VII when he was harassed by his supervisor from
January 2003 to the filing date of July 12, 2003. The agency notes that
it dismissed the previous complaint on September 8, 2003, on the grounds
that it was not filed within the 15-day filing period.
Upon review, we observe that the agency's dismissal of the complaint did
not specifically address each of the claims set forth in the complaint.
In addition to his termination, complainant references in his complaint
incidents that allegedly occurred in January 2003, February 2003, and
May 2003. With regard to the incidents that allegedly occurred prior to
complainant's termination, we find that complainant's contact of an EEO
Counselor on September 17, 2003, was not within the 45-day limitation
period. Complainant has not submitted adequate justification for an
extension of the 45-day limitation period with regard to these incidents.
Accordingly, the agency's decision dismissing these claims was proper
and is AFFIRMED pursuant to 29 C.F.R. � 1614.107(a)(2).
As for complainant's termination, we observe that complainant contends
that he did not receive the letter of termination until August 21,
2003, because he was out of the country from July 24, 2003 through
August 19, 2003. The agency has not presented evidence that refutes
complainant's contention. We therefore find that complainant's contact
of an EEO Counselor on September 17, 2003, was timely with regard to
his termination. Accordingly, the agency's dismissal of this claim was
improper and is REVERSED pursuant to 29 C.F.R. �1614.107(a)(2).
The agency's dismissal of the claims concerning incidents that occurred
in January 2003, February 2003, and May 2003 is AFFIRMED. The agency's
dismissal of the claim involving complainant's termination is REVERSED and
we REMAND this claim to the agency for further processing in accordance
with this decision and the Order herein.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (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
April 29, 2004
__________________
Date