01986495_r
11-08-1999
Albert P. Schultz, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Albert P. Schultz, )
Appellant, )
)
)
v. ) Appeal No. 01986495
) Agency No. 4C-150-0048-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On August 24, 1998, appellant filed a timely appeal of a final agency
decision, which was dated July 20, 1998, dismissing his complaint,
pursuant to 29 C.F.R. ��1614.107(a), (b), and (d), for failure to state
a claim, for stating the same claims previously decided by the agency
and the Commission, for failure to seek timely EEO counseling, and for
raising the same matters in his appeal to the Merit Systems Protection
Board (MSPB).
The record indicates that appellant contacted an EEO Counselor on
March 19, 1998, alleging discrimination based on mental and physical
disabilities (depression and Raynaud's syndrome) and in reprisal for
prior EEO activity when from 1988 to the present, the agency engaged in
�a pattern of, a practice of, a continuing violation of, and continuing
discrimination,� harassment, and retaliation against him; and the agency
failed to accommodate his disabilities and denied him due process in
processing his EEO complaints. Unable to resolve the matters informally,
appellant filed a formal complaint dated May 19, 1998, which incorporated
a number of his prior correspondence to the agency. Therein, appellant,
reiterating the issues raised during EEO counseling, alleged that on
March 11, 1998, he was offered a rehabilitation work assignment which
did not properly accommodate his disabilities in order to force him to
be disqualified from workers' compensation.
In its final decision, the agency, reiterating the content of the EEO
Counselor's Report, identified the allegations of appellant's complaint
as whether he was discriminated against when from 1988 to the present,
the agency engaged in a pattern of, a practice of, a continuing violation
of, and continuing discrimination, harassment, and retaliation against
him; and the agency failed to accommodate his disabilities and denied
him due process in processing his EEO complaints.
The agency noted that on June 11, 1993, appellant previously filed
a complaint concerning his removal of November 24, 1992. The agency
further noted that appellant, thereafter, appealed the agency's dismissal
of that complaint to the MSPB which rendered a decision on July 11, 1995,
reversing the agency's dismissal and ordering the agency to cancel the
removal and retroactively restore appellant with full back pay, interest
and benefit adjustments as appropriate effective November 24, 1992,
including compensatory damages of $5,000 in a subsequent appeal decision.
The agency also noted that it fully complied with the MSPB decisions,
and appellant, thereafter, took disability retirement effective November
17, 1997.
The agency also indicated that appellant raised numerous previous
repetitive allegations in his prior complaints, as well as in his
prior MSPB appeals, including the allegations in the present complaint.
The agency also indicated that an MSPB Administrative Judge previously
dismissed all of appellant's other added allegations concerning working
conditions and the agency's EEO complaint process. Finally, the agency
stated that with regard to the instant complaint, appellant failed
to state any unresolved matters; stated the same claims previously
filed and decided by the agency, the Commission, and the MSPB; and
sought counseling on March 19, 1998, ten (10) years after the alleged
discriminatory incidents.
Failure to State a Claim and Stating the Same Claims
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103
or states the same claim that has been decided by the agency or the
Commission. The Commission's Federal sector case precedent has long
defined an �aggrieved employee� as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Upon review, we find that several allegations in appellant's complaint,
concerning harassment, working conditions, reasonable accommodation,
and a rehabilitation work assignment, stated a claim. We note that
appellant was aggrieved due to the alleged incidents which affected a
term, condition, or privilege of his employment.
We, however, find that the allegation that the agency improperly processed
appellant's EEO complaints failed to state a claim. The Commission
has held that allegations of improper processing do not state separate
processable claims. See Kleinman v. USPS, EEOC Request No. 05940579
(September 22, 1994); Story v. USPS, EEOC Appeal No. 01965883 (March
13, 1997). When such allegations are raised the agency should refer
the complainant to the agency officials responsible for the quality of
complaint processing, and those individuals should earnestly attempt to
resolve dissatisfaction with the complaints process as early as possible.
See EEO MD 110, 4-8 (October 22, 1992).
Turning to the agency's dismissal of the complaint for stating the
same claims that had, previously, been decided by the agency and
the Commission, the record does not contain any evidence to support
its findings, i.e., by providing in the record a copy of the subject
decisions by the agency and/or the Commission. Thus, we find that the
agency's dismissal of the complaint on the subject grounds was improper.
EEOC Regulation 29 C.F.R. �1614.107(d) provides, in part, that the
agency shall dismiss a complaint or a portion of a complaint where
the complainant has raised the matter in an appeal to the Merit Systems
Protection Board and �1614.302 indicates that the complainant has elected
to pursue the non-EEO process.
We note that although the agency dismissed appellant's complaint on the
alternative grounds that appellant raised the same claims in his appeal to
the MSPB, the record is devoid of any evidence to support its findings,
i.e., by providing in the record a copy of the MSPB appeal petition
and/or its decision. Thus, we find that the agency's dismissal of the
complaint on the subject grounds was improper.
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
The Commission has adopted a �reasonable suspicion� standard (as opposed
to a �supportive facts� standard) to determine when the limitation period
is triggered under the EEOC Regulations. See 29 C.F.R. �1614.105(a)(2);
Ball v. United States Postal Service, EEOC Request No. 05880247 (July 6,
1988). Thus, the limitations period is not triggered until a complainant
should reasonably suspect discrimination, but before all the facts that
would support a charge of discrimination have become apparent.
In his complaint, appellant alleged that he was discriminated against
from 1988 through the present when he was harassed and was denied
reasonable accommodation. Specifically, appellant alleged that recently,
on March 11, 1998, he was offered a rehabilitation work assignment which
did not properly accommodate his disabilities and which would cause him
to be disqualified from workers' compensation. Appellant contacted an
EEO Counselor with regard to the matter on March 19, 1998, which was
within the 45-day time limit set by the regulations. Furthermore, we
note that the agency, in its decision, failed to address this allegation.
Since we consider the agency's omission of allegations as the dismissal of
such, we find that the agency failed to provide proper grounds for such
dismissal under the regulations. See 29 C.F.R. �1614.110. Therefore,
we find that the agency's decision dismissing the subject allegation by
failing to address such was improper. See Knapp v. Department of the
Navy, EEOC Request No. 05940662 (January 23, 1995).
With regard to the remaining allegations in the complaint, discussed
above, we find that they lack specificity and are too general. We note
that appellant merely alleged that he was subjected to a continuing
violation from 1988 to the present concerning harassment and the denial
of reasonable accommodation for his disabilities. Thus, we find that
the matter should be remanded back to the agency for clarification.
Based on the foregoing, the record is insufficient for us to determine
whether appellant's EEO contact was timely with regard to the subject
allegations. Therefore, the agency is Ordered, as stated below, to
conduct a supplemental investigation concerning the matter.
Accordingly, the agency's final decision is hereby MODIFIED, and
the allegations, except the allegation concerning the agency's EEO
complaint processing, are REMANDED to the agency for further processing
in accordance with this decision and applicable regulations.
ORDER
1. With regard to appellant's allegation regarding the March 11, 1998
rehabilitation work assignment, the agency is ORDERED to process the
subject allegation in accordance with 29 C.F.R. �1614.108. The agency
shall acknowledge to appellant that it has received the subject allegation
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to appellant a copy of the investigative file and
also shall notify appellant 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 appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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.
2. With regard to the remaining allegations, the agency is Ordered to
take the following actions:
(a) The agency, within fifteen (15) calendar days of the date this
decision becomes final, shall provide appellant with the opportunity
to clarify the subject allegations, i.e., regarding the dates and
the specific incidents being raised, as well as any personal loss or
injury he sustained as a result of the incidents. Appellant shall be
notified that he has thirty (30) calendar days within which to clarify
the allegations in response to the agency.
(b) Based on the foregoing, the agency, within sixty (60) calendar days
of the date that this decision becomes final, shall determine whether
to process the remanded allegations, i.e., notify appellant that the
allegations are being processed or that they will not be included in
the further processing of his complaint.
A copy of the request for clarification and a copy of the agency's
determination regarding the processing of the remanded allegations must
be sent to the Compliance Officer as referenced below.
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 (M0795)
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 (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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:
November 8, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations