01980001
03-02-1999
Wilson R. Lucero, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Wilson R. Lucero v. United States Postal Service
01980001
March 2, 1999
Wilson R. Lucero, )
Appellant, )
)
v. ) Appeal No. 01980001
) Agency No. 4E-890-0030-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq., and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq. The agency failed
to supply a copy of a certified mail return receipt establishing the
date appellant received the agency's final decision. The appeal was
postmarked September 26, 1997. Accordingly, since the agency failed
to supply documentation from which the Commission could determine the
date appellant received the final decision, the Commission presumes
that appellant's appeal was timely filed. See 29 C.F.R. �1614.402(a).
The appeal is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely EEO contact and for failure to state a claim.
BACKGROUND
The record of this matter is not entirely clear. However, upon review
it appears that appellant initiated EEO counseling on three different
occasions concerning allegations of discrimination regarding his July 3,
1996 termination from the agency. On July 3, 1996 appellant contacted
an EEO Counselor alleging discrimination in that (1) he was terminated
for receiving an unsatisfactory performance rating without being advised
that he was not performing the duties of his position and (2) the agency
erred in determining the date appellant's probationary period ended.
While appellant argues to the contrary, the record indicates that
appellant failed to timely file a formal complaint as a result of his
July 3, 1996 pre-complaint counseling.
Appellant sought pre-complaint counseling again on January 23, 1997
alleging that his termination was discriminatory because the agency
failed to consider evidence from appellant's doctor regarding his light
duty status. Thereafter, appellant received a letter dated February
24, 1997 in which the agency advised appellant that his pre-complaint
counseling of January 23, 1997 appeared to involve the same issues for
which appellant had been counseled on July 3, 1996 but had failed to
file a formal complaint. The letter also advised appellant that if he
wished to pursue the matter and did not believe the two informal cases
involved the same issues, he had fifteen (15) days from his receipt of the
enclosed Notice of Right to File, in which to file a formal complaint.
In response to the agency's February 24, 1997 correspondence, appellant
filed a formal complaint dated March 4, 1997 on the bases of race (Asian
Pacific Islander), sex (male) and disability (back). Therein, appellant
indicated that he did not believe that his two prior informal complaints
involved the same issues, and attempted to distinguish the issues involved
in his pre-complaint counseling of January 23, 1997 and July 3, 1996.
The record indicates further that following the filing of his March
4, 1997 formal complaint, appellant sought EEO counseling for the
third time on March 13, 1997 alleging discrimination in reprisal for
filing a prior EEO complaint as a result of his July 3, 1996 counselor
contact. Appellant's informal complaint of March 13, 1997 also alleged
discrimination when, following appellant's July 3, 1996 termination,
the agency changed a personnel form to correct appellant's entrance
on duty date. The record contains no evidence that appellant filed a
formal complaint based on his March 13, 1997 counselor contact.
On June 26, 1997 the agency issued its final decision (FAD) based
on appellant's March 4, 1997 formal complaint. The FAD determined
that appellant's January 23, 1997 EEO contact concerned allegations of
discrimination concerning (1) his July 3, 1996 termination and (2) his
discovery of January 23, 1997 that a personnel form had been changed to
correct appellant's entrance on duty date. The FAD found that appellant's
July 23, 1997 EEO contact regarding his July 3, 1996 termination was
beyond the forty-five (45) day time limitation established by EEOC
Regulations. The agency's decision further determined that appellant
failed to demonstrate that he had suffered a personal injury as a result
of his January 23, 1997 discovery of the corrected personnel form.
ANALYSIS AND FINDINGS
In the instant case, the agency defined appellant's complaint as
concerning (1) his July 3, 1996 termination and (2) his discovery on
January 23, 1997 that the agency had changed a personnel form to correct
appellant's entrance on duty date. On appeal, however, appellant contends
that he did not raise the issue concerning the corrected personnel form
until March 13, 1997 when he spoke with an EEO Counselor. We note here
that appellant refers to filing an EEO complaint on March 13, 1997.
The record indicates, however, that appellant in fact completed an
Information for Pre-Complaint Counseling form dated March 13, 1997
regarding the corrected personnel form.
The Commission finds that it is unclear from the record what allegations
appellant is raising in his complaint; therefore, we cannot determine if
the allegations in the complaint were timely raised with an EEO Counselor.
We are unable to clearly identify the issues for which appellant sought
EEO counseling on July 3, 1996, January 23, 1997 and March 13, 1997.
We are unable to determine whether appellant sought counseling for
the same issues in all three instances of pre-complaint counseling.
In that regard, the Commission determines that a meeting between the
parties may clarify the definition of the March 4, 1997 formal complaint.
The Commission shall remand the complaint to the agency so that appellant
can meet again with an EEO Counselor in order that an agreement can be
reached on the issues in appellant's complaint. See Smith v. United
States Postal Service, EEOC Request No. 05921017 (April 15, 1993).
The Commission noted in Smith that EEO Management Directive (MD) 110,
Chapter 2, III (October 22, 1992), provides that at the counseling stage,
the EEO Counselor must be certain that the Complainant's issues are
clearly defined and that the Complainant agrees on what issues are to
be the subject of the inquiry and subsequent attempts at resolution. Id.
Therefore, we shall remand the complaint for clarification. On remand,
the EEO Counselor after meeting with appellant must issue a new report
concerning the meeting(s) and defining the complaint. See id.
The Commission notes here that appellant's statements on appeal
identify several instances in which he believes that the agency's
EEO office has mishandled and improperly processed prior complaints.
Appellant is advised that pursuant to EEO MD 110 at 4-8 (October 22,
1992), allegations of this nature should be brought to the attention of
the agency officials responsible for the quality of complaint processing.
EEO MD 110 further provides that these individuals should earnestly
attempt to resolve dissatisfaction with the complaints process as early
as possible.
CONCLUSION
Having reviewed the entire record, the submissions on appeal, and for
the foregoing reasons, the Commission hereby VACATES the FAD's dismissal
of appellant's complaint. The aforesaid complaint is hereby REMANDED
for further processing consistent with this decision and applicable
regulations. The parties are advised that this decision is not a decision
on the merits of appellant's complaint. The agency is hereby ORDERED
to comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to process appellant's complaint in accordance with
29 C.F.R. Part 1614 and instructions in this decision. Specifically,
the agency shall:
1. Schedule in writing a meeting between appellant and an EEO Counselor
so an agreement can be reached on the definition of the complaint.
After the meeting(s), the counselor must issue a new counselor's report
concerning the meeting(s) and defining the complaint. Appellant shall
not be required to refile his complaint.
2. If an agreement cannot be reached on a definition of the issues in
appellant's complaint, then the agency shall issue a decision defining
the complaint. Such a decision must explicitly define all the allegation
in the complaint, i.e., the agency shall not dismiss allegations, defacto,
by failing to define or address allegations.
3. The agency shall notify appellant in writing of all allegations,
if any, it is accepting for investigation. If the agency wishes
to dismiss any allegations, then it must issue a decision doing so.
Such a decision must list all allegations being dismissed and provide
the specific grounds for dismissal.
4. The agency shall complete all the above actions within sixty (60)
calendar days of the date this decision becomes final.
5. A copy of the agency's letter to appellant arranging a meeting with
an EEO Counselor, and a copy of the acceptance letter and/or decision
issued pursuant to instructions 2 or 3 of this Order, must be sent to
the Compliance Officer as 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 (MO795)
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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 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 (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:
Mar 2, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations