01981485
06-18-1999
Richard W. Hammerstein, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Richard W. Hammerstein v. United States Postal Service
01981485
June 18, 1999
Richard W. Hammerstein, )
Appellant, )
)
v. ) Appeal No. 01981485
) Agency No. 1A-106-0063-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
For the reasons that follow, the Commission sets aside the agency's
November 7, 1997 final decision (FAD), which partially dismissed
appellant's September 21, 1997 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 December 10, 1997 appeal,<1>
by his non-attorney representative, 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 properly defined appellant's complaint. Smith v. U.S. Postal
Service, EEOC Request No. 05921017 (April 15, 1993). We also find
the agency has not met its burden of providing a clear record with
sufficient evidence to support the FAD. Hines v. U.S. Postal Service,
EEOC Appeal No. 01923566 (May 13, 1993); EEO Management Directive (MD)
110 (October 22, 1992), Ch. 5, �VIII (A); Henry v. U.S. Postal Service,
EEOC Request No. 05940897 (May 18, 1995).
We find, for example, that appellant filed two formal EEO complaints
in this matter, dated August 30, 1997; and September 21, 1997. We find
the complaints vague in places with numerous alleged facts. We also
find appellant's appeal contributes to obfuscating the issues through
reference to issues as "complaints," with extensive narratives, headings
that appear to relate to subissues, cross-referencing, "spread sheets,"
and the like.<2> The Commission cannot distinguish between "live"
allegations therein from background information intended to support
"live" allegations. In a similar situation, the Commission remanded the
complaint back to the agency so that appellant could meet again with an
EEO Counselor in order that an agreement could be reached on the issues
in appellant's complaint. Smith, supra. The Commission noted in Smith,
supra, that EEO Management Directive 110, Chap. 2, III (Oct. 22, 1992),
provides that, at the counseling stage, the EEO Counselor must be certain
the complainant's issues are clearly defined and the complainant agrees
on what issues are to be the subject of the inquiry and subsequent
attempts at resolution. On remand, the EEO Counselor, after meeting
with appellant, must issue a new report concerning the meeting(s) and
defining the complaint.
We also find the agency's complaint file deficient in its lack of
relevant documents pertaining to appellant's allegations of a pattern
of discrimination for prohibited reasons, including, but not limited
to, appellant's June 23, 1997 termination. In addition, the agency
appears to have omitted, or not adequately identified what seems to
be appellant's allegation that the agency failed to provide him with a
Career Mailhandler's position, again for prohibited reasons.
The FAD is hereby REVERSED, and this matter is hereby REMANDED for further
processing consistent with this decision and applicable regulations.
The parties are advised that this decision is not a decision on the
merits of appellant's complaints, which we herein direct the agency
to consolidate. The agency shall comply with the Commission's ORDER
set forth below.
ORDER
The agency is ORDERED to process appellant's complaint (i.e, appellant's
August 30, 1997 and September 21, 1997 complaints, as consolidated and
as referenced herein as appellant's September 21, 1997 complaint) in
accordance with 29 C.F.R. Part 1614 and instructions in this decision,
with the cooperation of appellant and his representative. Specifically,
the agency shall:
1. Schedule in writing a meeting between appellant and an EEO Counselor
so an agreement can be reached on the issues in appellant's September 21,
1997 complaint (as consolidated). After the meeting(s), the Counselor
must issue a new Counselor's report concerning the meeting(s) and
defining the complaint. Appellant shall not be required to refile his
consolidated complaint of September 21, 1997. Although appellant shall
be permitted to clarify his allegations, he shall not be permitted to
raise new allegations pertaining to his complaint.
2. Ensure, with regard to the September 21, 1997 consolidated
complaint, that appellant identifies in detail the facts of each and
every allegation, and bases of discrimination, with relevant dates of
occurrence, and names and titles of persons who allegedly discriminated
against him. Appellant shall also distinguish those allegations he intends
to be "live" allegations from those allegations intended to be background
evidence in support of "live" allegations. In addition, appellant shall
advise the agency as to whether he is seeking compensatory damages
in this matter, and shall provide objective evidence of compensatory
damages and the connection, if any, between the compensatory damages
and the alleged discrimination, upon request by the agency.
3. Ensure that all abbreviations are spelled out, and that all agency
terms of art are explained, e.g., "crunch hiring," particularly within
the context of the present matter.
4. Ensure that appellant's position, at the time this matter arose,
is clearly and specifically identified, including the applicable unit,
branch, or division that employed appellant at the time this matter arose,
with relevant dates of employment. In addition, the agency and appellant
shall ensure that all relevant and necessary documents pertaining to this
case are produced and that they are complete, legible, and identified.
5. Ensure that appellant's employee status with the agency at the
time this matter arose has been specifically and clearly identified.
The parties shall provide explanations for appellant's status where
necessary for a clear record, such as the term "casual."
6. If an agreement cannot be reached on a definition of the issues in
appellant's complaint, then the agency shall issue a new final agency
decision (FAD) defining the complaint. Such a FAD must explicitly define
all the allegations in the complaint, i.e., the agency shall not dismiss
allegations, de facto, by failing to define or address allegations.
7. The agency shall notify appellant in writing of all allegations,
if any, it is accepting for investigation. If the agency wishes to
dismiss any allegations, then it must issue a FAD doing so. Such a FAD
must list all allegations being dismissed and provide the legal grounds
for dismissal, as well as facts and documents relied upon. In this
regard, the agency shall ensure that all relevant, as well as referenced,
documents are produced and made a part of the record in this case, e.g.,
letter of termination. The agency shall issue but one FAD in this matter
and that FAD shall identify all issues to he adjudicated in appellant's
complaint, including those issues the agency is dismissing if any.
The FAD shall also contain appeal rights to the Commission.
8. The agency shall complete all the above actions, including the
issuance of the Counselor's report and FAD if there is disagreement as
to the issues in appellant's complaint and/or if the agency dismisses
appellant's complaint in whole or in part, within ninety (90) calendar
days of the date the Commission's decision becomes final in this matter.
9. A copy of the agency's letter to appellant arranging a meeting with
an EEO Counselor, and a copy of the acceptance letter and/or FAD issued
pursuant to instruction 7 above 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:
June 18, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The record is not entirely clear as to when appellant received the FAD
in this matter. It appears he received the FAD on or about November 13,
1997. In the absence of evidence to the contrary, we find appellant's
appeal to be timely. See 29 C.F.R. ��1614.402 and .604, in relevant
parts.
2Appellant also submitted untimely post-appeal documents, including
what appears to be a "reply" to the agency's response to his appeal.
Appellant, and his representative, are advised that untimely filings
and "reply" briefs will not be considered by the Commission.