01982738
03-20-2000
Steve B. Roberts, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Steve B. Roberts v. United States Postal Service
01982738
March 20, 2000
Steve B. Roberts, )
Complainant, )
)
v. ) Appeal No. 01982738
William J. Henderson, ) Agency No. 4-C-170-0053-97
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On February 24, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
February 17, 1998, pertaining to his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq. <1> In his complaint,
complainant alleged that he was subjected to discrimination on the basis
of physical disability (permanent back condition) when:
In August 1996, complainant was denied a transfer to the Hazleton
office; and
In July 1997, complainant was denied a transfer to the Scranton office.
The agency issued a final decision dated February 4, 1998, dismissing
issue (1) of complainant's complaint for untimely EEO Counselor contact
and accepting issue (2) for further processing. Complainant appealed
the final agency decision on February 24, 1998. Subsequently, on
March 23, 1998, complainant signed a form entitled Withdrawal of Formal
EEO Complaint of Discrimination. The agency notified the Commission
of complainant's withdrawal on May 13, 1998, and requested that the
Commission terminate the processing of complainant's appeal. By letter
postmarked May 21, 1998, complainant notified the Commission that he
did not wish to withdraw his complaint, but stated that he signed the
withdrawal form after an EEO Officer informed him that his chances of
obtaining a transfer were "slim to none."
The Commission has declined to hold complainants to a withdrawal of
an EEO complaint where the withdrawal was not knowing or voluntary.
See Moore v. Department of Defense, EEOC Request No. 05910724 (October
8, 1991). In the present case, complainant states that he withdrew his
complaint, at least in part, because he was told that his chances of
obtaining the relief he sought, i.e., a transfer, were "slim to none."
Based on the present record, we cannot say that complainant's withdrawal
was voluntary. See Quinn v. Department of the Navy, Appeal No. 01950375
(October 13, 1995). Therefore, the agency should resume processing of
issue (2) in accordance with the Order below.
In complainant's formal complaint, complainant stated that he was denied
a transfer to the Hazleton office in August 1996. 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. The record
indicates that complainant did not contact an EEO Counselor regarding
the alleged discriminatory agency action until July 15, 1997, outside the
forty-five (45) day time limitation period for timely counselor contact.
As complainant did not offer any justification for his delay in initiating
counselor contact, we find that his July 15, 1997 contact was untimely
with regard to issue (1).
Accordingly, the agency's dismissal of issue (1) was proper and is
hereby AFFIRMED. The agency's determination that complainant voluntarily
withdrew his complaint was improper. Issue (2) is remanded to the agency
for further processing in accordance with the Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded claim (2) in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claim (2) 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (T1199)
This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision 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. 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 (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:
March 20, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.