01983692
06-25-1999
Clauzell Waters, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Clauzell Waters, )
Appellant, )
)
v. ) Appeal No. 01983692
) Agency No. 1A 072 0001-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated
January 22, 1998 dismissing appellant's complaint for failing to timely
contact an EEO Counselor and as moot.
As an initial matter the agency argues that appellant failed to timely
file the instant appeal. The instant appeal was filed on April 8, 1998.
The agency argues that appellant's representative received the agency's
decision on February 5, 1998. If an appellant's representative is
an attorney, then the time frame for filing an appeal is computed
from the time of receipt of the agency decision by the attorney.
29 C.F.R. �1614.402(b). Appellant's representative in the instant
matter, however, is not an attorney. Therefore, the 30 day time
limit for filing an appeal in the instant matter does not commence
until appellant received the agency decision. 29 C.F.R. �1614.402(a).
The agency has not shown when appellant received the agency decision.
Therefore, we can not find the appeal to be untimely filed.
The agency defined the complaint as alleging that "beginning January 21,
1996, [appellant's] supervisor began to complain that [appellant was]
not working fast enough for her, was constantly on [appellant's] back,
told [appellant] that [appellant was] not allowed to go downstairs at
all, and hassled [appellant] non-stop." The agency found that appellant
initially contacted an EEO Counselor on September 13, 1996 and that none
of the incidents were within 45 days preceding appellant's September 13,
1996 contact.
Aggrieved persons must contact an EEO Counselor within 45 days of the date
of the matter alleged to be discriminatory. 29 C.F.R. �1614.105(a)(1).
In appellant's request for EEO counseling appellant indicated that
the alleged harassment was continuing until the time appellant sought
EEO counseling. It is not clear from the complaint or elsewhere in the
record if the alleged harassing incidents occurred within 45 days prior
to appellant's initial contact of an EEO Counselor. Therefore, we shall
remand the complaint so that the agency can contact appellant to clarify
the exact dates of the incidents in question. Thereafter the agency
shall redetermine whether appellant timely contacted an EEO Counselor.
The agency also dismissed the complaint as moot because appellant had been
removed from the agency. The agency found that appellant did not allege
in the complaint that he was discriminatorily removed. Appellant clearly
raised the removal allegation with the EEO Counselor. While appellant did
not expressly raise the removal allegation in the complaint, the complaint
can be construed as alleging harassment in an ongoing nature. We note
that the agency's letter dated January 28, 1997 initially accepting the
complaint defined the complaint as alleging harassment "culminating"
in appellant's removal. Therefore, viewing the record as a whole, we
shall remand the complaint so that the agency may contact appellant to
clarify whether he is raising the removal allegation in the complaint.
Thereafter the agency shall redetermine whether the complaint is moot.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall contact appellant to clarify:
The dates of incidents in the complaint.
Whether appellant is alleging that he was discriminatorily removed.
The agency shall then reconsider whether the complaint should be dismissed
for untimely EEO Counselor contact and as being moot. Within 60 days of
the date this decision becomes final the agency shall issue a letter
to appellant accepting the complaint for investigation or issue a new
decision dismissing the complaint. A copy of the letter accepting the
complaint or new decision dismissing the complaint must be sent to the
Compliance Officer as referenced herein.
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� (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:
June 25, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations