01983540_r
06-07-1999
Anthony J. Brescia, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Anthony J. Brescia, )
Appellant, )
)
v. ) Appeal No. 01983540
) Agency No. 4-H-335-1233-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On August 16, 1995, appellant requested counseling about being treated
like an EAS-22 employee even though appellant was a PCES-1 Postmaster.
Thirty (30) days expired with no action from the agency, so by letter
dated September 26, 1995, appellant requested that the agency �consider
this my formal EEO complaint.�<1> On September 28, 1995, the agency
responded by sending appellant a blank formal complaint form, requesting
that appellant complete the form to file a formal complaint. The agency
also included a notice of right to file a formal complaint, outlining
that appellant had 15 days from the date of receipt in which to file a
formal complaint. Appellant received the notice on September 30, 1995.
Appellant returned the form on October 25, 1995, with a note stating
that appellant filed his formal complaint on September 26, 1995.
On February 2, 1996, the agency issued a final agency decision (FAD-1)
dismissing appellant's allegation for untimely counselor contact.
Appellant's allegation was defined as: On July 8, 1995, and continuing,
appellant was reduced to a lower level in that as a PCES-1 Postmaster,
appellant has to report to a non-PCES manager. The agency found, however,
that appellant was aware of his allegation on March 3, 1995, when he was
told that his new position (which he obtained from a settlement agreement)
would not be a part of the main management cluster.
Appellant appealed, and in EEOC Appeal No. 01962822 (Sept. 19, 1996), the
Commission vacated appellant's complaint because it could not ascertain
what appellant alleged, when it occurred, when appellant was aware of
the alleged discrimination, or when he reasonably should have suspected
discrimination. Consequently, the Commission vacated FAD-1, and ordered,
inter alia, that the agency contact appellant to clarify his complaint.<2>
On remand, the agency again dismissed appellant's complaint for untimely
counselor contact (FAD-2). The agency found that appellant entered
into a confidential settlement agreement that allowed appellant to take
a PCES position, EAS-22. Further, the agency found that appellant was
aware that he would not be treated as a normal PCES employee on March 3,
1995, 164 days prior to appellant's August 14, 1995 counselor contact.
Appellant again appealed, and in EEOC Appeal No. 01972145 (Nov. 18,
1997), the Commission noted that the agency failed to contact appellant to
clarify his complaint before issuing FAD-2. The Commission found that the
record was still insufficient to determine the timeliness of appellant's
complaint, and again vacated the agency's decision. The Commission
again ordered the agency to contact appellant for clarification.
On remand, the agency sent appellant an investigative affidavit,
which appellant completed and returned on January 6, 1998. In the
affidavit, appellant stated that beginning on or about July 8, 1995,
appellant had not received the same training, pay, or benefits of other
PCES-1 executives. Appellant claims that he did not become aware of his
reduction from PCES-1 to EAS-22 until he was told of his down-grade by
letter dated July 21, 1995.
In a FAD dated March 20, 1998 (FAD-3), the agency defined appellant's
complaint as alleging discrimination on the basis of reprisal for prior
EEO activity when appellant was reduced to a lower level in that as
a PCES-1 Postmaster, appellant had to report to a non-PCES Manager on
July 8, 1995. The agency dismissed the allegation for failure to timely
file a written complaint, because appellant received a notice of right
to file a formal complaint on September 30, 1995, but did not file a
formal complaint until October 25, 1995.
On April 8, 1998, appellant filed the present appeal from FAD-3.
On appeal, appellant claims that he timely filed a formal complaint
on September 26, 1995. Further, appellant argues that the agency
disobeyed EEOC Regulations and prior Commission decisions in an attempt
to unlawfully stall appellant's complaint with procedural dismissals.
Appellant requests that attorney's fees be awarded, and that sanctions
be imposed on the agency for its misdeeds.
EEOC Regulation 29 C.F.R. �1614.105(d) requires, in relevant part,
that if counseling has not been resolved within thirty (30) days
of contacting a counselor, the aggrieved person shall be informed
in writing by the Counselor, not later than the thirtieth day after
contacting the Counselor, of the right to file a discrimination complaint.
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right to
file a complaint. Further, EEOC Regulation 29 C.F.R. �1614.106 (c)
requires that the complaint contain a signed statement from the person
claiming to be aggrieved that is sufficiently precise to identify the
aggrieved individual and the agency, and that describes generally the
actions or practices that form the basis of the complaint.
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in ��1614.105, 1614.106, and
1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
In the present case, the Commission finds that appellant exercised his
right to file a formal complaint on September 26, 1995, although the
agency failed to notify appellant of his right to file by the thirtieth
day after appellant contacted a counselor. Appellant submitted a written,
signed statement that manifested his intent to file a formal complaint.
Further, appellant attached a copy of his pre-complaint counseling form,
which identified the aggrieved and the agency, and described the actions
that formed the basis of his complaint. The Regulations do not require
that a formal complaint be made on a certain standardized form, nor do
they require appellant to abstain from filing a formal complaint when the
agency has failed to notify appellant of his right to file. Accordingly,
appellant's formal complaint was timely filed on September 26, 1995.<3>
Regarding appellant's request for sanctions and attorney's fees, appellant
must establish that he is a prevailing party in the matter in order to
receive attorney's fees. In order to be considered a prevailing party,
appellant must have, on a significant issue, substantially received
some of the relief he sought when he initiated his EEO action, and
appellant's EEO action must have been the catalyst motivating the agency
to provide the relief granted. See Hensley v. Eckerhart, 461 U.S. 424,
433 (1983). Generally, prevailing on a procedural issue does not
trigger an entitlement to attorney's fees. See Grossman v. United States
Postal Service, EEOC Request No. 05880472 (Sept. 22, 1988); Fowler
v. United States Postal Service, EEOC Appeal No. 01966584 (Jan. 28,
1998). While recognizing that in Weaver v. Department of Defense,
EEOC Appeal No. 01913114 (Dec. 5, 1991), the Commission held that the
agency's repeated dismissal of an appellant's complaint, and failure
to accept the complaint as ordered by the Commission, constituted an
unlawful restraint on appellant's right to file a formal complaint and,
therefore, appellant was entitled to attorney's fees, we find that in
the present case the agency has not yet defied a Commission Order to
accept the complaint. Consequently, we deny appellant's request for
attorney's fees; however, the agency is hereby advised that the further
processing of appellant's complaint should comply with all applicable
time limitations and regulations.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint is
REVERSED, and the allegations are REMANDED for further processing and
investigation. Appellant's request for sanctions and attorney's fees,
however, is denied.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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(c) (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 (R0993)
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. 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 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 (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:
June 7, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Appellant claims on appeal, and
the agency does not contradict, that appellant attached a copy
of his pre-complaint counseling form to his September 26, 1995
correspondence.
2The Commission found that appellant was raising a new allegation,
not alleging breach of settlement.
3Further, the Commission notes that appellant's complaint was timely
raised with an EEO Counselor. Appellant alleged that he became aware of
his mistreatment on July 8, 1995, but the agency has provided no evidence
to establish an earlier date on which appellant should have gained a
reasonable suspicion of discrimination; a copy of the settlement agreement
was not included in the record. Appellant contacted a counselor on
August 14, 1995, less than forty-five (45) days after the incident date.