01A41433_r
07-08-2004
Tamus J. Glunz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Tamus J. Glunz v. United States Postal Service
01A41433
July 8, 2004
.
Tamus J. Glunz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41433
Agency No. 1F-931-0012-03
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated January 17, 2004, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.<1>
On August 14, 2003, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful.
On October 8, 2003, complainant filed a formal complaint, which the
agency characterized as alleging that she was discriminated against on
the bases of disability and in reprisal for prior EEO activity when:
On an unspecified date in August 2003, complainant received a PS Form
50, Notice of Personnel Action, stating that she was removed from the
Postal Service rolls effective July 26, 2003, and that her last day in
a pay status was May 9, 1998; and
Complainant became aware in the Notice of Final Interview for the instant
complaint, dated September 24, 2003, that the agency failed to comply
with her requests for reinstatement of prior EEO cases.
In its January 17, 2004 final decision, the agency dismissed claim
(1) on the grounds of untimely EEO Counselor contact, and claim (2)
for alleging dissatisfaction with the processing of a previously filed
complaint. Regarding claim (1), the agency found that complainant was
issued a Notice of Separation on August 26, 1999, stating that she would
be separated in 30 days of receipt of the Notice, but that she did not
contact an EEO Counselor until August 14, 2003 (after she received a July
26, 2003 Notice that she was removed from the agency rolls), thereby
initiating EEO Counselor contact beyond the forty-five day time limit.
Regarding claim (2), the agency determined that complainant's claim
concerned her request for reinstatement of prior complaints in Case
numbers 1F-924-0024-97 and 1F-924-0013-97, and therefore expressed
dissatisfaction with the processing of those complaints.
Concerning claim (1), the record discloses that complainant received a
Notice of Separation dated August 26, 1999, stating that she would be
separated in thirty days of receipt of the Notice, but that she was not
officially separated from the agency until July 26, 2003. The record
indicates that complainant was in a non-pay status after she received
the Notice and filed a grievance on the matter (pursuant to a collective
bargaining agreement); however, complainant nevertheless remained on
the rolls and her removal from the agency was not made effective until
July 26, 2003. As the alleged discriminatory event occurred on July 26,
2003, and complainant's EEO Counselor contact occurred on August 14,
2003, we find that complainant's EEO Counselor contact was timely. We
therefore find that claim (1) was improperly dismissed pursuant to 29
C.F.R. � 1614.107(a)(2).
Regarding claim (2), the record indicates that Complaint Nos.
1F-924-0024-97 and 1F-924-0013-97 were unsuccessfully mediated in July
2001, and that complainant requested reinstatement of the complaints
before an EEOC Administrative Judge. When complainant discovered during
an interview for the instant complaint that her previous cases had not
been returned to the Commission, she filed claim (2) as a part of the
instant complaint. We find that, as claim (2) expresses dissatisfaction
with the processing of complainant's previous complaints in case numbers
1F-924-0024-97 and 1F-924-0013-97, the agency properly dismissed claim
(2) pursuant to 29 C.F.R. � 1614.107(a)(8).<2>
Accordingly, the agency's dismissal of claim (2) is AFFIRMED.
The agency's dismissal of claim (1) is REVERSED, and that claim is
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (T0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 8, 2004
__________________
Date
1The agency's January 24, 2004 decision
cancelled and superceded a previous decision dated December 4, 2003.
2We note that the record shows that by letter dated January 16, 2004,
the agency returned the complaints in Case Nos. 1F-924-0024-97 and
1F-924-0013-97 to the EEOC for reinstatement of the complaints at the
hearing stage.