01a02021
10-06-2000
Dean Talbot, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dean Talbot v. United States Postal Service
01A02021
October 6, 2000
.
Dean Talbot,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02021
Agency No. 4B-028-0010-00
DECISION
Upon review, the Commission finds that complainant's complaint
was improperly dismissed pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1)).<1> Complainant alleged that he was discriminated
against on the basis of his physical disability in that, since March
1999, he was denied a non-competitive appointment at the Southeast New
England Postal District as part of the handicapped program.
In its decision to dismiss the complaint, the agency determined that
although complainant requested to be considered for a non-competitive
appointment as an �individual with a severe disability,� he had not been
properly referred by a Vocational Rehabilitation Counselor so as to be
considered an applicant for a non-competitive appointment. The record
shows that on October 25, 1999, the agency received a referral from
complainant's Vocational Rehabilitation Counselor, but that the agency
considered the referral to be erroneously completed so as to make the
agency unable to consider complainant as an applicant under the program.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim.
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission has defined an "aggrieved employee" as one who
suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
After a review of the agency's final decision, the Commission finds that
the agency has addressed the merits of complainant's complaint without
a proper investigation as required by the regulations. We find that
the agency's articulated reason for the action in dispute, i.e., that
complainant's Vocational Rehabilitation Counselor did not properly refer
him for a non-competitive appointment, goes to the merits of complainant's
complaint, and is irrelevant to the procedural issue of whether he has
stated a justiciable claim under Title VII. Although the agency did not
consider complainant an applicant for employment because it believed
he had not been properly referred, complainant clearly requested to
be considered for a non-competitive appointment as an �individual with
a severe disability,� making him an applicant for employment under 29
C.F.R. � 1614.103. Consequently, we find that complainant's complaint
was improperly dismissed for failure to state a claim.
We note that in his appeal filed on January 12, 2000, complainant
also appears to be alleging breach of a 1989 settlement agreement
with the agency. A review of the record reveals that in response to
complainant's February 11, 1999 claim of breach of a settlement agreement,
the agency issued a decision received by complainant on March 15, 1999.
In order for an appeal of the agency's decision regarding the breach
of settlement claim to be considered timely, complainant had to file
his appeal of the decision no later than 30 days from the March 15,
1999 date he received the decision. 29 C.F.R. � 1614.402. Therefore,
to the extent that complainant is attempting to appeal the agency's
decision regarding his claim of breach of a settlement agreement, his
appeal is hereby DISMISSED pursuant to � 1614.403(c).
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and is REMANDED to the agency for further processing
in accordance with this decision and the Order below. Complainant's
appeal of the agency's decision regarding his claim of breach of the
1989 settlement agreement is DISMISSED.
ORDER (E0900)
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 (K0900)
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 (M0900)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (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
October 6, 2000
__________________
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.