Andreas Leikam, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 11, 1999
01983316 (E.E.O.C. Jan. 11, 1999)

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