01983316
01-11-1999
Andreas Leikam, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Andreas Leikam v. United States Postal Service
01983316
January 11, 1999
Andreas Leikam, )
Appellant, )
)
v. ) Appeal No.01983316
) Agency No.4K-220-0037-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated February 19, 1998, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107(e). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The appellant alleged in his January 23, 1997 complaint that based on his
race and sex, the agency issued him a notice of removal on November 15,
1996.
The record indicates that the appellant raised a claim for compensatory
damages in two sworn statements. The record also contains a note
from the appellant that he hoped he would be able to submit supporting
statements from his friends and family by March 1, 1997. The record
does not contain copies of any such statements or any other evidence in
support of the appellant's compensatory damages claim such as statements
from his physician and his counselor.
The final agency decision dismissed the appellant's complaint on the
ground that it is moot because an Arbitrator ordered the agency to
reinstate the appellant and to make him whole for lost benefits and wages.
The decision indicated that although the appellant knew of the need
to support his compensatory damages claim, he has yet to furnish the
necessary documents.
In the instant case, the appellant was represented by an attorney as
indicated by the Investigation Report. Therefore, the agency should
have served the appellant's attorney with a copy of its request for
compensatory damages evidence. See 29 C.F.R. �1614.605(d). Because the
appellant's attorney was not provided with an opportunity to submit
evidence in support of the appellant's compensatory damages claim, the
Commission finds that the agency's dismissal of the appellant's complaint
was, at best, premature. In addition, the Commission finds that the
record contains some evidence to support the appellant's compensatory
damages claim. See Affidavit A and Exhibit C-15, page 2.
CONCLUSION
For the reasons stated above, the Commission REVERSES the agency's
dismissal of the appellant's January 23, 1997 complaint and REMANDS the
complaint for processing as ORDERED below.
ORDER
Within 30 calendar days of the date this decision becomes final,
the agency shall notify the appellant's attorney in writing of the
opportunity to present evidence in support of the appellant's compensatory
damages claim within 45 calendar days of the attorney's receipt of the
notification letter.
Upon receipt of the attorney's submissions, or the expiration of the
time period for submission, the agency shall continue the processing of
the appellant's complaint in accordance with the relevant provisions of
29 C.F.R. Part 1614.
If the agency chooses to issue a new final agency decision pursuant to
29 C.F.R. �1614.107(e) or 29 C.F.R. �1614.110, it shall do so within
90 calendar days of the date this decision becomes final.
The agency shall submit to the Compliance Officer referenced below a copy
of letter described in paragraph 1 of this ORDER and a copy of either
a new final decision issued by the agency or a copy of a settlement
agreement resolving this complaint.
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 (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:
January 11, 1999
Date Ronnie Blumenthal, Director
Office of Federal Operations