01974006
06-10-1999
Robert S. Shimansky, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert S. Shimansky v. United States Postal Service
01974006
June 10, 1999
Robert S. Shimansky, )
Appellant, )
)
v. ) Appeal No. 01974006
) Agency No. 1N 1645-92
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
March 19, 1997 dismissing appellant's complaint. The agency defined
the complaint as alleging that appellant was discriminated against on
the bases of age and retaliation when:
From April 6, 1991 (the agency mistakenly referred to the year 1992 in
the decision, but corrected the year in a brief on appeal) to October 2,
1992, appellant's carrier route was not properly adjusted after a special
inspection.
On July 14, 1992 appellant was instructed to carry a two hours hand-off.
On July 30, 1992 appellant was issued a letter of warning.
The agency dismissed the entire complaint as moot, allegation 1 for
untimely EEO Counselor contact and for failing to state a claim, and
allegation 2 for failing to state a claim.
Allegation 1
The Commission finds that the agency properly dismissed allegation 1
for untimely EEO Counselor contact pursuant to 29 C.F.R. �1614.107(b).
Appellant initially contacted an EEO Counselor on July 27, 1992.
Shimansky v. United States Postal Serv., EEOC Appeal No. 01940733
(Feb. 14, 1994), request for reconsideration denied, EEOC Request
No. 05940466 (Nov. 10, 1994). Appellant stated in a letter dated January
27, 1993 to the EEO Counselor/Investigator that the "whole office had a
route inspection" in October 1991. Furthermore, appellant stated that
he filed a grievance on July 15, 1991 "for the route not being adjusted
. . ." Appellant stated that the union won the grievance on August 20,
1991, but that the route was still not adjusted correctly.
The Commission finds that appellant should have reasonably suspected
discrimination in 1991 regarding allegation 1 which is more than 45
days prior to his initial contact of an EEO Counselor. The Commission
finds that appellant knew that the agency was not adjusting the route
as appellant wished in 1991. Appellant has not claimed or shown that
he did not suspect the discriminatory nature of the agency's failure to
adjust the route until 45 days or less prior to his initial EEO Counselor
contact. Because of our disposition we do not address whether the agency
properly dismissed allegation 1 as moot and for failing to state a claim.
Allegation 2
The Commission finds that the agency properly dismissed allegation 2 for
failing to state a claim pursuant to �1614.107(a). The agency found,
and appellant does not clearly dispute, that appellant has not shown that
he was required to carry out the instruction in question. Therefore,
we find that appellant has not shown how he was harmed in allegation 2.
Because of our disposition we do not address whether the agency properly
dismissed allegation 2 as moot.
Allegation 3
The agency found that allegation 3 is moot because the letter of warning
was rescinded and because "no complaint of constructive discharge has
been presented for processing." The Commission previously found that
the instant complaint was not moot because appellant had raised a claim
of constructive discharge through appeal submissions to the Commission
(including his November 11, 1992 letter to an EEO Counselor). Shimansky
v. United States Postal Serv., EEOC Appeal No. 01954243 (April 11, 1996).
The Commission held that because of the possibility that appellant were to
prevail on the constructive discharge claim, the complaint was not moot.
Id.
The Commission finds that the agency should provide appellant with the
opportunity to receive EEO counseling on the constructive discharge claim
rather than simply presuming that appellant has abandoned such a claim.
Appellant does not indicate that he is abandoning his constructive
discharge claim. The Commission can not therefore find allegation
3 moot. The Commission shall order the agency to provide appellant with
the opportunity to receive EEO counseling on the constructive discharge
claim and then file an EEO complaint on the constructive discharge claim.
If appellant declines to pursue his constructive discharge claim, then
the agency may redismiss allegation 3 as moot if appropriate.
The agency's decision dismissing allegations 1 and 2 is AFFIRMED.
The agency's decision dismissing allegation 3 is REVERSED and we REMAND
allegation 3 to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall send to appellant, within 30 days of the date this
becomes final, a letter providing appellant with the opportunity to
receive EEO counseling on the constructive discharge claim and then file
an EEO complaint on the constructive discharge claim. If appellant
declines to pursue his constructive discharge claim, then the agency
may redismiss allegation 3 as moot if appropriate. If the constructive
discharge claim is being pursued, then the agency shall process allegation
3 pursuant to 29 C.F.R. �1614.108 et seq. A copy of the agency's letter
to appellant must be sent to the Compliance Officer referenced herein.
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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:
June 10, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations