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.