01990472_r
10-05-1999
Benjamin Torres, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Benjamin Torres, )
Appellant, )
)
v. ) Appeal No. 01990472
) Agency No. 4A-006-0036-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final decision was issued on September
21, 1998. The appeal was postmarked October 22, 1998. Accordingly,
the appeal is considered timely<1> (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
On March 2, 1998, appellant initiated contact with an EEO Counselor.
The record contains an Information for Precomplaint Counseling form
prepared by appellant on March 10, 1998. In that portion of the form
requesting that complainants provide a description of the incidents
which prompted them to seek EEO counseling, appellant indicated that on
December 19, 1997, he received a letter of suspension and on January 24,
1998, he received a letter of removal. Informal efforts to resolve his
concerns were unsuccessful.
On May 20, 1998, appellant filed a formal complaint, alleging that he
was the victim of unlawful employment discrimination on the basis of
reprisal. Therein, appellant made reference to copies of grievances,
statements and an affidavit filed with the National Labor Relations Board.
Appellant noted that the alleged discriminatory event occurred on �12/97.�
Appellant's requested relief consisted, in part, of cancellation of an
agency personnel action and his immediate return to the agency's Arecibo,
Puerto Rico, facility.
Thereafter, the agency requested clarification of the matters raised
in appellant's formal complaint. In response, appellant submitted a
letter to the agency dated August 10, 1998. Therein, appellant requested
that his complaint be amended to include a variety of allegations that
he forgot to include in his original complaint. These allegations
addressed harassment in October 1995; denial of overtime in March 1996;
refusal to reinstate him to his former agency position; agency efforts
to stop an employee initiative to take up a collection on his behalf;
delay in paying him a judgement and the purported statement of an agency
official reflecting that she would never allow appellant to return to
work with the agency again.
On September 21, 1998, the agency issued a final decision. Therein,
the agency found that appellant's formal complaint was comprised of ten
allegations, that were described in the following fashion:
1. In October 1995, you were harassed, persecuted and intimidated by
management when after calling in sick, despite not being on restricted
sick leave, the 204B Supervisor demanded that you provide a doctor's note.
2. In March 1996, as a form of persecution, the Postmaster purposely
denied you the opportunity to work overtime, even though you were on
the Overtime Desired List.
3. On December 4, 1997, you were issued a Letter of Warning charging you
with failure to follow instructions . . . being obnoxious and offensive
to a Supervisor and creating unpleasant working conditions.
4. On December 19, 1997, you were placed in an Emergency Placement in
Off Duty Status.
5. On December 19, 1997, you were issued a Notice of Seven Days
Suspension, effective January 10, 1998, charging you with being
disrespectful to a Supervisor.
6. On January 21, 1998, you were issued a Notice of Removal, charging
you with unacceptable conduct.
7. On February 11, 1998, you won a grievance settlement, and management
refused to pay you for months.
8. On March 16, 1998, when the Postmaster discovered employees were
trying to assist you by taking up a collection, she attempted to stop
them by issuing a memorandum.
9. On March 16, and 23, 1998, employees overheard the Postmaster saying
she would never allow you to return to work in Arecibo.
10. On March 23, 1998, after a judge dismissed charges against you by
your Supervisor, the Postmaster has continued to refuse to reinstate you.
The agency accepted allegations 3 - 6 for investigation. The agency
dismissed allegations 1, 2, and 7 - 10 on the grounds that appellant did
not undergo EEO counseling and that these allegations were not like or
related to matters for which appellant had undergone EEO counseling.
On appeal, appellant argues that all the matters raised in the
formal complaint were brought to the attention of an EEO Counselor.
In response, the agency argues that allegations 1, 2, and 7 - 10 were
properly dismissed for the reasons set forth in the final decision.
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that raises a matter
that has not been brought to the attention of an EEO Counselor and is
not like or related to a matter that has been brought to the attention
of a Counselor.
As a threshold matter, the Commission notes that on appeal, appellant
argues that all the allegations raised in the formal complaint were
raised with an EEO Counselor. The record, however, supports a finding
that appellant solely underwent EEO counseling on the matters addressed
in allegations 3 - 6.
The Commission determines that the agency properly dismissed allegations
1, 2, and 7 for failure to contact an EEO Counselor. These allegations
address the agency requiring appellant to provide medical certification
for an absence (allegation 1); denial of an overtime opportunity
(allegation 2); and delay in receipt of a grievance settlement
(allegation 7). The Commission finds that these allegations are not like
or related to matters for which appellant underwent EEO counseling. The
agency's decision to dismiss these allegations was therefore proper and
is AFFIRMED.
Allegations 8 - 10 address the following matters relating to appellant's
separation from agency employment: the agency's purported attempt to
stop an employee collection drive on appellant's behalf (allegation 8);
an agency official's purported statement that appellant would never be
permitted to work for the agency's Arecibo facility (allegation 9);
and the agency's refusal to reinstate appellant (allegation 10).
The Commission determines that the matters addressed in these
allegations are like or related to appellant's actual discharge from
agency employment, raised in allegation 6, and which has been accepted
for investigation. Accordingly, the Commission determines that the
agency's decision to dismiss allegations 8 - 10 for failure to contact
an EEO Counselor was improper and is REVERSED. Allegations 8 - 10 are
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations (allegations 8 -
10) 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 (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:
October 5, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
1 The dismissal of a complaint or a portion of a complaint may
be appealed to the Commission within thirty (30) calendar days of
the date of the complainant's receipt of the dismissal or final
decision. See 29 C.F.R. �1614.402(a). Because the agency failed
on appeal to supply a copy of the certified mail receipt or any
other material capable of establishing that date, the Commission
presumes that the appeal was filed within thirty (30) calendar
days of the date of appellant's receipt of the final decision.