01A20010_r
08-13-2002
Wilson P. Philip, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wilson P. Philip v. United States Postal Service
01A20010
August 13, 2002
.
Wilson P. Philip,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20010
Agency No. 1G-753-0084-98
DECISION
Upon review, the Commission finds that the agency improperly dismissed
complainant's complaint in its decision dated October 18, 2001, when
it implemented the Order of Dismissal issued by the EEOC Administrative
Judge (AJ) on August 31, 2001. In complainant's complaint, dated June
30, 1998, complainant claimed that he was discriminated against on the
bases of race (Mongoloid), national origin (Asian Indian) and disability
(neck and back injury) when:
On February 11, 1997, complainant was placed �off the clock;�
On April 3, 1997, complainant was issued a notice of removal; and
On March 3, 1998, complainant's termination was upheld following an
arbitration hearing.
The Commission issued a decision on Appeal Number 01990115, Agency Number
1G-753-0084-98, on November 22, 1999. In that decision, involving the
same claims of discrimination as in the instant case, the issue on appeal
was whether complainant contacted the EEO Counselor in a timely manner.
In that decision, the Commission reversed the agency's decision and
found that �[b]ecause the agency never provided any evidence concerning
whether complainant knew or should have known of the time limitations,
we find that the agency failed to support its decision to dismiss the
complaint on timeliness grounds.�
In the AJ's Order of Dismissal in the instant case, the AJ stated, �On
February 1, 2001, I issued an Order To Show Cause why the referenced
complaint should not be dismissed as untimely filed. Complainant
initially represented that he was unaware of Commission time frames when
he filed
the complaint in 1998. Investigation reveals that in 1996 complainant
also filed a complaint which would have made him aware of the time
frames.� It is unclear from this Order whether the AJ found that
complainant did not initiate contact with the EEO Counselor within
the limitation period, or, whether complainant did not file his formal
complaint within the limitation period. A review of the record, however,
shows that in complainant's June 30, 1998 complaint, the time frame
which complainant claims that he lacked constructive knowledge was the
time frame for contacting an EEO Counselor.
In Appeal Number 01990115, the Commission reversed the agency's decision
that complainant's contact with the EEO Counselor was untimely because the
agency presented no evidence of constructive knowledge of the limitation
period. Additionally, even if the Commission were to revisit the matter
of complainant's timeliness regarding contact with an EEO Counselor, or
the timely filing of the formal complaint, the mere filing of a previous
complaint is not sufficient in this case to demonstrate constructive
knowledge of the limitation periods.
The record also shows that complainant received the notice of right
to file a formal complaint on June 30, 1998, and, complainant's formal
complaint is dated June 30, 1998. The notice indicated that complainant
had to file a formal complaint within fifteen (15) calendar days of its
receipt. There is no postmark in the record indicating the date on which
complainant's complaint was filed; however, the agency bears the burden
of presenting sufficient information to support a reasoned determination
regarding timeliness. The Commission finds that complainant's formal
complaint was timely filed.
The agency's decision dismissing complainant's complaint is REVERSED.
We REMAND the complaint for further processing in accordance with the
Order below.
ORDER
The agency is directed to submit a copy of the complaint file to the
appropriate EEOC Hearings Unit within fifteen (15) calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below that
the complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final
action in accordance with 29 C.F.R. � 1614.110.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
August 13, 2002
__________________
Date