01A34503_r
07-20-2004
Larry Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Larry Davis v. United States Postal Service
01A34503
July 20, 2004
.
Larry Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34503
Agency No. 1J-461-0024-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 27, 2003, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of race (Black) when: on August 10, 2002, complainant was
assigned a permanent rehabilitation position with different off days.
The agency dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. The agency stated that although the
alleged discriminatory incident occurred on August 10, 2002, complainant
failed to contact an EEO Counselor until December 19, 2002.
The record reveals that complainant received a rehabilitation job offer
for a Modified Full Time Mail Handler dated July 25, 2002, which was
rejected by complainant. On August 7, 2002, the agency subsequently
notified complainant that he was being reassigned as a Modified Full
Time Mail Handler, to become effective August 10, 2002.
The record also reveals that complainant filed an appeal with the Merit
Systems Protection Board (MSPB) on August 5, 2002, alleging that the
agency failed to honor his rights to restoration when it offered him
the July 2002 job assignment, which he rejected. A review of the MSPB
appeal reveals that complainant alleged that the job offer constituted
discrimination. In an October 10, 2002 decision, the MSPB dismissed
complainant's appeal for lack of jurisdiction.
EEOC Regulation 29 C.F.R. � 1614.302(b) states that if a person files
a mixed case appeal with the MSPB and the MSPB dismisses the appeal for
jurisdictional reasons, the agency shall promptly notify the individual
in writing of the right to contact an EEO counselor within 45 days
of receipt of this notice and file an EEO complaint. Further, the
regulation provides that the date on which the person filed his or her
appeal with the MSPB shall be deemed to be the date of initial contact
with the counselor.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
Upon review the Commission finds that complainant's complaint was
improperly dismissed for untimely EEO Counselor contact. In the
present case, complainant's MSPB appeal, which was dismissed for lack
of jurisdiction, contained a discrimination claim regarding a basis
covered by the Commission. The agency had a duty pursuant to 29 C.F.R. �
1614.302(b) to notify complainant about initiating the EEO process,
and the date of filing the MSPB appeal shall be considered the date of
initial EEO Counselor contact in this case. Complainant filed his mixed
case appeal with the MSPB on August 5, 2002. Although complainant filed
his MSPB appeal after receiving the July 25, 2002 job offer, we note
that the same job offer became a permanent reassignment effective August
10, 2002, and thus is considered to have merged with the job offer.
Therefore, as complainant's August 5, 2002 EEO Counselor contact was
within forty-five days of the alleged discriminatory event, we find that
complainant's EEO Counselor contact was timely.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and the matter is REMANDED for further processing
in accordance with the Order listed below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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
July 20, 2004
__________________
Date