Jay W. Jessup, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01a44812 (E.E.O.C. Nov. 29, 2004)

01a44812

11-29-2004

Jay W. Jessup, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jay W. Jessup v. United States Postal Service

01A44812

November 29, 2004

.

Jay W. Jessup,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A44812

Agency No. 1J-461-0025-04

DECISION

Upon review, the Commission finds that complainant's complaint was

improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) on the

grounds of untimely EEO Counselor contact.

On January 22, 2004, complainant initiated EEO Counselor contact. In an

Information for Pre-Complaint Counseling form, complainant claimed that

he submitted a valid bid on an �open run� on November 3, 2003, and that

on January 22, 2004, he learned that the bid was awarded to a co-worker,

to be effective January 24, 2004.

Informal efforts to resolve his concerns were unsuccessful. On May 13,

2004, complainant filed the instant complaint, claiming that he was

the victim of unlawful employment discrimination in reprisal for prior

protected activity.

On May 27, 2004, the agency issued a final decision. Therein, the

agency determined that complainant's complaint was comprised of the claim

that he was refused a bid job. The agency determined that the alleged

discriminatory event occurred on November 13, 2003, thereby rendering

untimely his initial EEO contact on January 22, 2004.

On appeal, complainant states that he only developed a reasonable

suspicion of unlawful employment discrimination on January 22, 2004,

for the reasons he had set forth in the Information for Pre-Complaint

Counseling form, discussed above.

The record contains a memorandum dated November 13, 2003. Therein, an

agency Maintenance Coordinator indicated that complainant's �PAR request�

dated November 3, 2003, had been received and reviewed. The Maintenance

Coordinator stated that this position could not be awarded to complainant.

There is no evidence of record reflecting that complainant received

this memorandum.

By memorandum dated December 29, 2003, an agency Manager acknowledged

receipt of another letter submitted by complainant dated December 2, 2003.

The agency Manager stated that in his correspondence, complainant stated

that the November 13, 2003 memorandum (discussed above), was incomplete.

The Manager stated that a Step 2 settlement was the reason for the

agency's determination on this matter. There is evidence of record

reflecting that complainant received this memorandum.

Upon review of the record, the Commission is persuaded by complainant's

assertion, unrebutted by the agency, that complainant only developed a

reasonable suspicion of unlawful employment discrimination in January

2004, rendering timely his initial EEO Counselor contact. Where, as

in the instant case, there is an issue of timeliness, �an agency always

bears the burden of obtaining sufficient information to support a reasoned

determination as to timeliness.� See Williams v. Department of Defense,

EEOC Request No. 05920506 (August 25, 1992).

Accordingly, the agency's final decision dismissing the complaint on

the grounds of untimely EEO Counselor contact is REVERSED. The instant

complaint is REMANDED to the agency for further processing in accordance

with the ORDER below.

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 (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

November 29, 2004

__________________

Date