Benjamin Torres, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 5, 1999
01990472_r (E.E.O.C. Oct. 5, 1999)

01990472_r

10-05-1999

Benjamin Torres, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Benjamin Torres, )

Appellant, )

)

v. ) Appeal No. 01990472

) Agency No. 4A-006-0036-98

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 final decision was issued on September

21, 1998. The appeal was postmarked October 22, 1998. Accordingly,

the appeal is considered timely<1> (see 29 C.F.R. �1614.402(a)), and is

accepted in accordance with EEOC Order No. 960, as amended.

On March 2, 1998, appellant initiated contact with an EEO Counselor.

The record contains an Information for Precomplaint Counseling form

prepared by appellant on March 10, 1998. In that portion of the form

requesting that complainants provide a description of the incidents

which prompted them to seek EEO counseling, appellant indicated that on

December 19, 1997, he received a letter of suspension and on January 24,

1998, he received a letter of removal. Informal efforts to resolve his

concerns were unsuccessful.

On May 20, 1998, appellant filed a formal complaint, alleging that he

was the victim of unlawful employment discrimination on the basis of

reprisal. Therein, appellant made reference to copies of grievances,

statements and an affidavit filed with the National Labor Relations Board.

Appellant noted that the alleged discriminatory event occurred on �12/97.�

Appellant's requested relief consisted, in part, of cancellation of an

agency personnel action and his immediate return to the agency's Arecibo,

Puerto Rico, facility.

Thereafter, the agency requested clarification of the matters raised

in appellant's formal complaint. In response, appellant submitted a

letter to the agency dated August 10, 1998. Therein, appellant requested

that his complaint be amended to include a variety of allegations that

he forgot to include in his original complaint. These allegations

addressed harassment in October 1995; denial of overtime in March 1996;

refusal to reinstate him to his former agency position; agency efforts

to stop an employee initiative to take up a collection on his behalf;

delay in paying him a judgement and the purported statement of an agency

official reflecting that she would never allow appellant to return to

work with the agency again.

On September 21, 1998, the agency issued a final decision. Therein,

the agency found that appellant's formal complaint was comprised of ten

allegations, that were described in the following fashion:

1. In October 1995, you were harassed, persecuted and intimidated by

management when after calling in sick, despite not being on restricted

sick leave, the 204B Supervisor demanded that you provide a doctor's note.

2. In March 1996, as a form of persecution, the Postmaster purposely

denied you the opportunity to work overtime, even though you were on

the Overtime Desired List.

3. On December 4, 1997, you were issued a Letter of Warning charging you

with failure to follow instructions . . . being obnoxious and offensive

to a Supervisor and creating unpleasant working conditions.

4. On December 19, 1997, you were placed in an Emergency Placement in

Off Duty Status.

5. On December 19, 1997, you were issued a Notice of Seven Days

Suspension, effective January 10, 1998, charging you with being

disrespectful to a Supervisor.

6. On January 21, 1998, you were issued a Notice of Removal, charging

you with unacceptable conduct.

7. On February 11, 1998, you won a grievance settlement, and management

refused to pay you for months.

8. On March 16, 1998, when the Postmaster discovered employees were

trying to assist you by taking up a collection, she attempted to stop

them by issuing a memorandum.

9. On March 16, and 23, 1998, employees overheard the Postmaster saying

she would never allow you to return to work in Arecibo.

10. On March 23, 1998, after a judge dismissed charges against you by

your Supervisor, the Postmaster has continued to refuse to reinstate you.

The agency accepted allegations 3 - 6 for investigation. The agency

dismissed allegations 1, 2, and 7 - 10 on the grounds that appellant did

not undergo EEO counseling and that these allegations were not like or

related to matters for which appellant had undergone EEO counseling.

On appeal, appellant argues that all the matters raised in the

formal complaint were brought to the attention of an EEO Counselor.

In response, the agency argues that allegations 1, 2, and 7 - 10 were

properly dismissed for the reasons set forth in the final decision.

EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall

dismiss a complaint or a portion of a complaint that raises a matter

that has not been brought to the attention of an EEO Counselor and is

not like or related to a matter that has been brought to the attention

of a Counselor.

As a threshold matter, the Commission notes that on appeal, appellant

argues that all the allegations raised in the formal complaint were

raised with an EEO Counselor. The record, however, supports a finding

that appellant solely underwent EEO counseling on the matters addressed

in allegations 3 - 6.

The Commission determines that the agency properly dismissed allegations

1, 2, and 7 for failure to contact an EEO Counselor. These allegations

address the agency requiring appellant to provide medical certification

for an absence (allegation 1); denial of an overtime opportunity

(allegation 2); and delay in receipt of a grievance settlement

(allegation 7). The Commission finds that these allegations are not like

or related to matters for which appellant underwent EEO counseling. The

agency's decision to dismiss these allegations was therefore proper and

is AFFIRMED.

Allegations 8 - 10 address the following matters relating to appellant's

separation from agency employment: the agency's purported attempt to

stop an employee collection drive on appellant's behalf (allegation 8);

an agency official's purported statement that appellant would never be

permitted to work for the agency's Arecibo facility (allegation 9);

and the agency's refusal to reinstate appellant (allegation 10).

The Commission determines that the matters addressed in these

allegations are like or related to appellant's actual discharge from

agency employment, raised in allegation 6, and which has been accepted

for investigation. Accordingly, the Commission determines that the

agency's decision to dismiss allegations 8 - 10 for failure to contact

an EEO Counselor was improper and is REVERSED. Allegations 8 - 10 are

REMANDED to the agency for further processing in accordance with this

decision and applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations (allegations 8 -

10) in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge

to the appellant that it has received the remanded allegations 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.

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:

October 5, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

1 The dismissal of a complaint or a portion of a complaint may

be appealed to the Commission within thirty (30) calendar days of

the date of the complainant's receipt of the dismissal or final

decision. See 29 C.F.R. �1614.402(a). Because the agency failed

on appeal to supply a copy of the certified mail receipt or any

other material capable of establishing that date, the Commission

presumes that the appeal was filed within thirty (30) calendar

days of the date of appellant's receipt of the final decision.