01972187
01-14-1999
Charles L. Watkins, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charles L. Watkins v. United States Postal Service
01972187
January 14, 1999
Charles L. Watkins, )
Appellant, )
) Appeal No. 01972187
v. ) Agency No. 1-I-641-0010-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On January 4, 1997, appellant filed an appeal of the agency's November 25,
1996 final agency decision. The agency failed to provide a certified
mail return receipt or any other material capable of establishing the
date when appellant received the final agency decision. Accordingly,
the Commission presumes that appellant's appeal was filed within 30 days
of appellant's receipt of the agency's final decision. Accordingly,
the appeal is accepted as timely (see, 29 C.F.R. �1614.402(a)), in
accordance with the provisions of EEOC Order No. 960, as amended.
In the final agency decision, the agency noted that appellant requested
EEO counseling on the issue of whether he was tricked, deceived and
coerced into signing a settlement agreement entered into in Agency
No. 1-I-641-1067-96. Appellant's request for counseling was assigned
Agency No. 1-I-641-0010-97. In its decision, the agency stated that
appellant's request for counseling would be processed as a request to
reopen Agency No. 1-I-641-1067-96, rather than as a new complaint. The
agency also stated that it was voiding the settlement agreement entered
into in Agency No. 1-I-641-1067-96 and, pursuant to 29 C.F.R. �1614.504,
was reinstating the July 22, 1996 complaint, which resulted in the
settlement agreement. The agency reasoned that in entering into the
settlement agreement, the agency had not complied with the requirements
of the Older Workers' Benefit Protection Act (OWBPA).<1>
There is no dispute that the agency voided the settlement agreement
in Agency No. 1-I-641-1067-96. In addition, the record reveals that
the agency reinstated the complaint in Agency No. 1-I-641-1067-96 and
conducted an investigation therein. The record also reveals that in
a July 10, 1997 letter, appellant requested a hearing before an EEOC
Administrative Judge in Agency No. 1-I-641-1067-96. Accordingly, we find
that the agency's decision in dismissing the present matter was proper.
The Commission notes that on appeal appellant expressed concerns
regarding the investigation and processing of the complaint in Agency
No. 1-I-641-1067-96. When allegations regarding improper processing
are raised, the agency is required to refer the complainant to the
agency official responsible for the quality of complaint processing and
these individuals should earnestly attempt to resolve dissatisfaction
with the complaints process as early as possible. See EEO Management
Directive (MD)-110 (4-8); Driscoll v. Department of the Navy, EEOC
Request No. 05940179 (December 21, 1994). The Commission has held that
allegations of improper processing are not processable as separate and
independent allegations of discrimination and must be processed with the
underlying complaint. The Commission has also held that allegations that
an agency improperly investigated a complaint do not support independent
allegations of improper processing, but must be addressed before, during,
or after the hearing or on appeal from a decision issued thereafter.
Kleinman v. U.S. Postal Service, EEOC Request No. 05940579 (September 22,
1994).
Finally, the Commission notes that on appeal, appellant also appears to
be raising other allegations of discrimination. Appellant is advised
that if he wishes to pursue these matters further, he should contact an
EEO Counselor, if he has not already done so.
Consistent with our discussion herein, the agency's final decision
is AFFIRMED.
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 (S0993)
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. 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:
Jan. 14, 1999
DATE Ronnie Blumenthal, Director
1The OWBPA amended the Age Discrimination in Employment Act (ADEA),
effective October 16, 1990, and provides the minimum requirements for
waiver of ADEA claims. Juhola v. Department of the Army, EEOC Appeal
No. 01934032 (June 30, 1994).