Charles Higgins, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 26, 2000
01a02679 (E.E.O.C. Sep. 26, 2000)

01a02679

09-26-2000

Charles Higgins, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Charles Higgins v. United States Postal Service

01A02679

September 26, 2000

.

Charles Higgins,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A02679

Agency No. 4F-940-0027-00

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated February 2, 2000, dismissing 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 Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and

Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791

et seq.<1> In his complaint, complainant alleged that he was subjected to

discrimination on the bases of race (Black), sex (male), age (over 40),

physical disability (not specified), and in retaliation for prior EEO

activity when:

On or about October 5, 1999, complainant returned to duty following

an on the job injury and discovered that his former assignment was

being performed by others, his work location was changed to a different

facility, and he was assigned more onerous assignments and given less

desirable conditions.

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor

contact. The record reveals that complainant first contacted an EEO

Counselor with regard to the October 5, 1999 incident, on October 6,

1999. The agency noted that complainant was in a non-duty status for an

extended period of time following an on-the-job injury which occurred on

July 7, 1993. The agency stated that complainant was a party to an EEO

complaint filed on October 13, 1997, which alleged that, based on age,

disability, and in retaliation for prior EEO activity, he was removed from

his normal duty assignment. Thus, the agency claimed that complainant had

a reasonable suspicion of discrimination nearly two years prior to his

return to duty in October 1999, and argued that complainant's complaint

should be dismissed due to untimely EEO Counselor contact. In addition,

the agency dismissed complainant's complaint pursuant to the regulation

set forth at 29 C.F.R. � 1614.107(a)(1), for stating the same claim

that is pending before or has been decided by the agency of Commission.

Specifically, the agency stated that complainant's current complaint

involves the same matter addressed in Agency Case No. 1F-941-0144-97,

which is currently pending before the Commission.

On appeal, complainant's representative contends that October 5,1999, was

the date complainant first learned that his former work had been given

to employees other than letter carriers on their routes. In addition,

complainant alleges that upon his return to work he was denied work

and given more onerous assignments and less desirable conditions.

Complainant's representative references a January 6, 2000 letter in which

the agency states that complainant was informed by the labor relations

specialist on July 29, 1998, that his Special Delivery Messenger (SDM)

assignments were abolished and that he was eligible to bid on clerk craft

assignments as of July 4, 1998. Complainant's representative claims that

the agency hid this status change from complainant and argues that there

is no documentation to support the agency's contention that complainant

was aware of his change in status prior to his EEO Counselor contact.

Upon review of the record, we find that the agency improperly dismissed

complainant's complaint for raising the same claim that was pending before

or has been decided by the agency or Commission. The agency claimed

that complainant raised the present matter in a prior EEO complaint,

Agency Case No. 1F-941-0144-97. We note that the record does not contain

a formal complaint in Agency Case No. 1F-941-0144-97 or any other evidence

to support the agency's assertion that complainant raised the present

matter in a prior complaint.

Similarly, we find that the agency improperly dismissed complainant's

complaint on the grounds of untimely EEO Counselor contact. The agency

claimed that complainant had a reasonable suspicion of discrimination

in October 1997, two years prior to his return to work in October 1999,

based on the assertion that complainant was party to a complaint which

alleged that based on his age, disability, and in retaliation for

prior EEO activity he was removed from his normal duty assignment.

The Commission again notes that despite the agency's assertion, the

agency has failed to show any evidence that complainant was a party to a

previous EEO complaint involving the same matter. We note that the record

contains an EEO Counseling printout which states that complainant raised

a claim on discrimination based on age and in retaliation for prior EEO

activity that he was �removed from [his] normal duty assignment.� We note

that even if the printout is considered proof that complainant filed a

previous EEO complaint, this document is insufficient to identify which

issues were raised in that previous complaint. Therefore, we find that

the agency failed to support its dismissal of the subject complaint for

untimely EEO contact.

Accordingly, we REVERSE the agency's final decision and REMAND

complainant's complaint for further processing in accordance with the

Order below.

ORDER (E0800)

The agency is ORDERED to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant 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 complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant 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 (K0800)

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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0800)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish 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.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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 WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. 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

September 26, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

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.