01984360
12-17-1999
Randy E. Peterson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Randy E. Peterson, )
Appellant, )
)
v. ) Appeal No. 01984360
) Agency No. 1B-061-0013-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
For the reasons that follow, the Commission sets aside the agency's
March 27, 1998 final decision (FAD), which partially dismissed
appellant's January 20, 1998 formal EEO complaint for untimely EEO
Counselor contact. See 29 C.F.R. �1614.107(b). We are not persuaded by
the agency's response to appellant's May 6, 1998 appeal<1> to persuade
us to the contrary.
We find, from our review of the entire record, as well as the arguments
on appeal including those not expressly addressed herein, that the agency
has not met its burden of providing evidence sufficient to sustain a
timeliness determination regarding appellant's allegations that, for 11
years, his manager (male) harassed him on the basis of sex (male).<2>
Guy, Jr. v. Department of Energy, EEOC Request No. 05930703 (January
4, 1994).
We note, as the agency did in its response to appellant's appeal,
his contention that he had sought counseling from the agency �Labor
Relations/EEO on at least three separate occasions during these last
eleven years, if not more.� Appellant further avers that he was informed
by a named individual and other, unidentified, persons, that �I needed to
have actual proof (witnesses's statements) or a great deal of evidence
in order to file an EEO complaint.� Appellant further asserts that he,
unsuccessfully, raised his claims with �five [agency] union stewards,�
and �four other [agency] supervisors� during that 11-year period.
The FAD is hereby REVERSED and this matter hereby REMANDED for a
supplemental investigation, in accordance with this decision and
applicable regulations. The parties are advised that this decision is
not a decision on the merits of appellant's complaint. The agency is
hereby directed to comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, with
appellant's cooperation, as described below. Specifically, the agency
shall:
1. Obtain under oath or affirmation, a statement from appellant
providing the names, titles, and positions of each and every individual
with whom appellant asserts he raised his allegations of discrimination
during the 11-year period at issue. Appellant shall also identify the
substance of his conversations with those individuals; the dates when the
conversations occurred; and the responses, if any, of those individuals
to appellant's allegations.
2. Obtain under oath or affirmation, statements from those
individuals with whom appellant has alleged he raised his allegations
of discrimination. Those individuals shall be identified by name,
title, and position. The agency shall also have those individuals
relate, with specificity, the substance of their conversations, if any,
with appellant; the dates those conversations purportedly took place;
and the results of those conversations, if any.
3. Obtain any and all documentation relevant to appellant's alleged
reports of discrimination during the ll-year period at issue.
4. Thereafter, the agency shall issue a report of its supplemental
investigation and, subsequently, issue a letter accepting all of
appellant's allegations for investigation; or, alternatively, issue a
final decision (FAD) with appeal rights to the Commission, dismissing
appellant's complaint in whole or in part. The agency shall support any
dismissals by identifying the appropriate legal grounds, facts relied
upon, and any and all documents upon the agency has predicated the FAD.
5. The completion of the supplemental investigation, and the issuance of
the report of the supplemental investigation, as well as the issuance
of the letter of acceptance or FAD, as provided for in instruction
(4), above, shall be effected within ninety (90) days of the date the
Commission's decision becomes final. A copy of the report of supplemental
investigation, and issuance of the letter of acceptance or FAD, as the
case may be, 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. �l6l4.604(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:
Dec. 17, 1999
DATE Carlton M. Hadden, Acting Director Office of Federal
Operations
1The record shows appellant received the FAD in this matter on April 10,
1998. Therefore, appellant's appeal is timely. See 29 C.F.R. ��1614.402
and .604, in relevant parts.
2The FAD referred, in relevant part, to appellant's allegation that he
had �been subjected to extreme and ongoing discriminatory harassment of
a sexual nature.� However, on appeal, appellant contends, in pertinent
part, that �[i]nstead of �nature', I meant to use the word �basis.' My
complaints against [the manager] and [a co-worker] are of discriminatory
harassment and sabotage which is sexually based, not necessarily of a
sexual nature.� (Emphasis in original.)