01983254
03-24-1999
Bryce C. Webster, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Bryce C. Webster v. United States Postal Service
01983254
March 24, 1999
Bryce C. Webster, )
Appellant, )
)
v. ) Appeal No. 01983254
) Agency No. 1-A-101-0032-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency erred, in part, in its February
4, 1997 decision dismissing a portion of appellant's complaint on
the basis of failure to state a claim under the provisions of 29
C.F.R.�1614.107(a).
A review of the record shows that appellant alleged that he had been
discriminated against on the basis of reprisal for prior EEO activity
when: (1) on November 4, 1997, his request to continue a temporary change
of assignment (PS Form 3189) was denied and appellant was returned to
his regular hours and position; (2) on November 5, 1997, appellant was
signed out by the TSPO for refusing to work; (3) on January 2, 1998,
appellant was given an assignment memo with a copy of new bids for his
review and opportunity to submit a bid suitable to appellant's needs; and,
(4) on January 13, 1998, appellant was accused of falsifying an injury
and management recommended his claim for compensation be controverted.
The record further shows that appellant also alleged that: (5) on November
4, 1997, he was denied FMLA; (6) on November 4, 1997, he was denied PS
Form 3189 for 12:00 A.M. tour; (7) on November 5, 1997, he was not allowed
to begin the 9:30 A.M. tour; (8) on November 4, 1997, he was forced to
go to the medical unit by management. He was told to report November 6,
1997, to work windows; (9) he was not given an assignment on November 5,
1997; (10) he was signed out by TSPO because he refused to work; (11)
on November 6, 1997, he was instructed to report to 2:00 A.M. tour,
L/O days Sun/Wed; (12) on November 7, 1997, he was instructed to report
at 6:00 A.M. tour; (13) no other L/D person was sent to 2:00 A.M. tour;
(14) many employees were off assigned tours; (15) Supervisor B instructed
to continue harassment; (16) on January 2, 1998, he was forced to bid out;
(17) on January 13, 1998, he was accused of faking injury ; (18) he was
followed to the medical unit; (19) another employee was not controverted
for IOD; and, (20) unassigned regular could work window.
The agency issued a final decision accepting allegations (1), (2) and
(3) for investigation. Allegation (4) was dismissed on the grounds of
failure to state a claim. On appeal, appellant contends that the agency
failed to address all the allegations he raised in his formal complaint.
The agency, however, contends that "appellant appears to write his
thoughts as separate issues ... as a result, the agency combined the
bullet items into the four issues as defined in the FAD".
Appellant claims that allegations (5) - (20) were not addressed by the
agency. A review of the accepted allegations shows that the issue raised
in allegation (6) was also raised in allegation (1). Allegation (10)
was also raised as part of allegation (2), and allegation (16) was also
raised in allegation (3). Accordingly, the agency did not err by not
addressing allegations (6), (10) and (16) separately because they have
been included in the accepted allegations. A review of the remaining
allegations persuades the Commission that they raise issues that are
different from the accepted issues. Allegations (5), (7), (8), (9) (11),
(12) and (15) were not addressed by the agency in its final decision.
A fair reading of allegation (13), however, shows that it raises the
same incident as allegation (11). Moreover, allegations (13),(14) and
(20) constitute background information to support appellant's claim.
Accordingly, the agency erred by not accepting or dismissing allegations
(5), (7), (8), (9) (11), (12) and (15).
Regarding allegation (4), we agree with the agency's dismissal of this
allegation on the grounds of failure to state a claim. The Commission
has held that "it is an agency's obligation to controvert an employee's
worker's compensation claim where there is dispute as to the stated
facts". Lesa v. Department of the Treasury, EEOC Appeal No. 01945595
(February 23, 1995). Accordingly, allegation (4) was properly dismissed.
Moreover, a review of allegations (17), (18) and (19) persuade the
Commission that the issues raised in said allegations are related to
the incident raised in allegation (4). Allegations (17), (18) and (19)
do not need to be processed by the agency.
Accordingly, the dismissal of allegation (4) is AFFIRMED. The agency
is hereby ORDERED to process allegations (5), (7), (8), (9) (11), (12)
and (15).
ORDER (E1092)
The agency is ORDERED to process the remanded allegations 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. �l6l4.604(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:
March 24, 1999
DATE Office of Federal Operations