01A44532_r
10-07-2004
Willie D. Key, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Willie D. Key v. United States Postal Service
01A44532
October 7, 2004
.
Willie D. Key,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44532
Agency No. 1H-351-0051-04
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 18, 2004, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On April 13, 2004, complainant initiated EEO Counselor contact. During
EEO complaint processing, and prior to the agency's issuance of a Notice
of Right to File a Formal Complaint, complainant prepared a handwritten
�notice of a formal complaint� on April 13, 2004, claiming that he was
discriminated against when he received a notice stating that he was
not retired. On May 6, 2004, complainant prepared a document that he
identified as an �amendment� to his �complaint.� Therein, complainant
claimed that the agency should be paying into his retirement while he is
on workers' compensation. After informal efforts to resolve his concerns
were unsuccessful, complainant filed a formal complaint on May 21, 2004.
It is the May 21, 2004 formal complaint that is the subject of the
instant appeal
In its final decision, the agency determined that the instant complaint
was comprised solely of the claim that complainant was the victim of
unlawful employment discrimination on the bases of race, disability, and
in reprisal for prior EEO activity when he and his physician received
notice dated March 30, 2004, from the Office of Workers' Compensation
Programs (OWCP), that he was not retired.<1>
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact. The agency found that in December 1999, complainant
signed a document acknowledging that he was not simultaneously entitled
to Federal Employment Compensation Act (FECA) benefits and Civil Service
Retirement Act or Federal Employees' Retirement System Act benefits.
The agency also found that on April 18, 2000, complainant was advised of
his entitlement to FECA benefits while receiving retirement benefits, and
was given an election form to sign because he could not receive both for
the same period. The agency also found that complainant was notified
of his indebtedness on April 28, 2000, for retirement compensation
received if he elected compensation from OWCP, and informed on May 1,
2000 of the amount refunded to the agency as of his election to move
from OPM to FECA rolls. The agency thus determined that complainant's
April 13, 2004 Counselor contact was more than forty-five days beyond
the April 28, 2000, and May 1, 2000 incidents described above.
The agency also dismissed the complaint for failure to state a claim.
Specifically, the agency determined that complainant was not aggrieved
by the OWCP notification.
On appeal, complainant contends that he �has never been informed or
updated� that he �was still an employee while on worker[s'] compensation.�
Complainant also asserts that after clarification of his status that he
was not retired, he �amended� his �complaint� on May 6, 2004, because
�the [agency] should be paying into my retirement as long as I am on
Worker[s'] Compensation.� Complainant argues that the agency failed to
address this claim.
Upon review, the Commission finds that complainant's claim as stated
by the agency in its final decision was properly dismissed pursuant
to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO contact.
The record indicates that complainant knew or should have known of the
alleged discrimination no later than May 1, 2000, but that complainant
did not initiate contact with an EEO Counselor until April 13, 2003,
which is beyond the forty-five (45) day limitation period. Because we
affirm the agency's dismissal of this claim for the reason stated herein,
we find it unnecessary to address alternative dismissal grounds.
However, the Commission notes that the agency did not address a separate
claim, which was identified in complainant's May 6, 2004 �amendment� and
which concerns retirement pay. The Commission deems the agency's failure
to address this claim to be tantamount to a dismissal of that matter.
The record reveals that the EEO Office was notified of the issue by
complainant's May 6, 2004 �amendment,� and that complainant made reference
to the matter when he actually prepared the instant formal complaint
form, dated May 21, 2004. The Commission determines that this issue
addresses an alleged personal loss or harm regarding a term, condition,
or privilege of complainant's employment. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The agency's dismissal of complainant's claim concerning his March 30,
2004 retirement notice is AFFIRMED. The agency's dismissal of the
claim that the agency should be paying into his retirement is REVERSED,
and that claim, as identified herein, is REMANDED to the agency for
further processing in accordance with 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
October 7, 2004
__________________
Date
1The record indicates that complainant
also alleged discrimination based on age. The agency is reminded
that it must clearly and explicitly dismiss issues or bases, and offer
appeal rights regarding them, in order to have such matters stated in
a complaint dismissed. See Jozlin v. Department of Veterans Affairs,
EEOC Appeal No. 01920040 (February 12, 1992).