01A04598
02-28-2001
William T. Napoli, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
William T. Napoli v. United States Postal Service
01A04598
February 28, 2001
.
William T. Napoli,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04598
Agency No. 4H-335-0133-00
DECISION
In a complaint dated April 14, 2000, complainant alleged that he was
discriminated against in reprisal for prior EEO activity when he was
told by his supervisor to work on his EEO complaints on January 29,
2000, which was his non-scheduled day<1>.
Pursuant to EEOC Regulations the agency dismissed complainant's complaint
for failure to state a claim. Specifically, the agency determined
that complainant was not an aggrieved employee because his claim of
discrimination concerned the processing of previously filed complaints
and was therefore a spin-off complaint that need not be processed.
Upon review, we find that the agency's dismissal of the instant matter
for failure to state a claim was improper. Although complainant's
complaint related to prior EEO complaints filed by complainant, he has
not claimed improper processing of those cases requiring dismissal as a
spin-off complaint pursuant to EEOC regulation 29 C.F.R. � 1614.107(a)(8).
Instead, complainant claims that he was denied official time to work on
his EEO complaints.
Upon review, we find that this case is controlled by the decision
in Edwards v. USPS, EEOC Request No. 05960179 (December 23, 1996).
In Edwards, the complainant alleged that she was discriminated against in
retaliation for prior EEO activity when she was denied official time.
The Commission noted that 29 C.F.R. �1614.605(b) provides that �if
the complainant is an employee of the agency, he or she shall have a
reasonable amount of official time, if otherwise on duty, to prepare the
complaint and to respond to agency and EEOC requests for information.�
The Commission held that it had the authority to remedy a violation of 29
C.F.R. �1614.605 without a finding of discrimination. The Commission held
that such allegations of a regulation violation should not be processed
in accordance with 29 C.F.R. �1614.108, since the focus is not on the
motivation, but rather the justification on whether the complainant was
denied a reasonable amount of requested official time.
Consequently, in the instant case, we find that the agency's dismissal
of complainant's complaint was in error. A determination must now be
made whether complainant was improperly denied a reasonable amount of
official time. Consequently, we hereby VACATE the final agency decision
and REMAND this matter to the agency for further processing in accordance
with the Order below.
ORDER
The agency shall take the following actions:
1) The agency shall investigate the issue of whether complainant was
denied a reasonable amount of official time. The agency shall include
in the record documentation showing how much time was requested, for what
stated purpose, how much time was granted, if any, and the justification
for the denial of any requested time;
2) The agency shall notify complainant of the opportunity to place
into the record any evidence supporting his claim that he was denied a
reasonable amount of official time; and
3) The agency, within ninety (90) calendar days of the date this decision
becomes final, shall issue a decision as to whether complainant was
denied a reasonable amount of official time. The agency's decision
shall provide appeal rights to this Commission.
A copy of the decision must be submitted to the Compliance Officer 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 (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
February 28, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.