05a00639
11-30-2000
Alphonso Jointer, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Alphonso Jointer v. United States Postal Service
05A00639
November 30, 2000
.
Alphonso Jointer,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Request No. 05A00639
Appeal No. 01A00207
Agency No. 1J-607-0097-97
Hearing No. 210-98-6467X
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Alphonso
Jointer v. United States Postal Service, EEOC Appeal No. 01A00207
(April 3, 2000).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
On November 27, 1997, complainant filed a formal complaint alleging
discrimination on the bases of race (African American) and age (DOB:
2/1/47), when, beginning on July 28, 1997, he was denied training for a
supervisory position. Following an investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). On February 5,
1999, the AJ remanded the case to the agency, and directed the agency to
complete a supplemental investigation within 45 days. Specifically, the
AJ remanded the case for supplemental investigation because complainant
objected to the agency's framing of his complaint, and argued that the
complaint should include allegations that complainant was denied training
for the past seventeen years. Accordingly, the AJ ordered that the
agency make a determination as to whether complainant's allegations were
timely raised with an EEO Counselor and, if not, the agency was to provide
complainant with appeal rights to the Office of Federal Operations.
Following its supplemental investigation, the agency issued a final
decision finding that complainant failed to timely bring his concerns
to the attention of an EEO Counselor. The agency also found that EEO
posters referencing the time period for initiating EEO contact were
prominently displayed at complainant's postal facility. Accordingly,
the agency issued a final decision dismissing complainant's claims of
discrimination with �dates prior to July 28, 1997" as untimely.
The prior decision found the agency's dismissal was proper. Specifically,
we found complainant had a reasonable suspicion of discrimination as early
as 1983. Thus, we determined complainant's reliance on the continuing
violation theory was misplaced. Furthermore, we found complainant failed
to present sufficient justification to extend the time limits and noted
that complainants must act with due diligence in support of their claims
or the doctrine of laches may be applied. We also noted that testimony
during the supplemental investigation revealed that posters were displayed
in complainant's facility as early as 1981.
As such, we affirmed the agency's dismissal of complainant's claims that
he was discriminated against when he was denied training for the past
17 years. We did, however, remand for assignment to an AJ complainant's
timely claim that he was denied training in July 1997, since complainant
had not withdrawn his request for a hearing.
In his request for reconsideration, complainant claims the agency's
supplemental investigation was not timely completed. He reiterates his
arguments that his complaint was not drafted appropriately, and that he
was treated less favorably than individuals both in and outside of his
protected classes. Complainant states that he never saw the EEO posters,
and that the time limit for contacting an EEO Counselor should therefore
be waived.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the request. Complainant
failed to establish that the prior decision involved a clearly erroneous
interpretation of material law or fact. The record reveals complainant
had a reasonable suspicion that he was discriminated against as early
as 1983, but failed to contact an EEO Counselor. He failed to provide
sufficient reason why the time limits should be extended in this case.
Complainant's claim that he was denied training in July 1997 is remanded
for assignment of an AJ. We remind the agency that complainant's
claims that he was denied training prior to July 1997 can be used as
background evidence in support of his timely claim. The decision in
EEOC Appeal No. 01A00207 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER
The complaint is remanded to the Hearings Unit of the EEOC Chicago
District Office for scheduling of a hearing in an expeditious manner.
The agency is directed to submit a copy of the complaint file to the
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 (K0900)
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)(Supp. V 1993). 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0900)
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 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 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
November 30, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.