01991080and1061
01-05-2000
Donald Dowd, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Donald Dowd, )
Complainant, )
)
v. ) Appeal Nos. 01991061
) 01991080
William J. Henderson, ) Agency Nos. 4-H-330-0303-98
Postmaster General, ) 4-H-330-0010-98
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On November 23, 1998, complainant filed two timely appeals with this
Commission.<1> Appeal number 01991061 was from a final agency action
concerning 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. Appeal number 01991080 was from an action
finding that the agency was in compliance with the terms of the
November 13, 1997 settlement agreement into which the parties entered.
See EEOC Regulation 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.402(a)); 29 C.F.R.
� 1614.504(b); EEOC Order No. 960, as amended.
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed
complainant's complaint for untimely contact with an EEO Counselor and
properly determined that it did not breach a settlement agreement with
complainant dated November 13, 1997.
BACKGROUND
Untimely Contact With An EEO Counselor
The record indicates that on March 30, 1998, complainant initiated contact
with an EEO Counselor because, on January 20, 1998, he was denied overtime
and four of his co-workers were granted it. Informal efforts to resolve
his concerns were unsuccessful. On July 21, 1998, complainant filed a
formal complaint alleging that he was the victim of unlawful employment
discrimination on the bases of color (white) and retaliation (prior EEO
activity).
On September 11, 1998, the agency issued a final action dismissing
complainant's complaint for untimely contact with an EEO Counselor.
The agency found that complainant initiated contact with an EEO Counselor
69 days after the alleged discriminatory act and failed to provide a
credible explanation to justify an extension of the 45-day time limit.
This appeal followed.
Breach of Settlement Agreement
On March 30, 1998, by two PS Forms 2564-A<2>, complainant alleged that the
agency was in breach of their November 13, 1997 settlement agreement, and
requested that the agency implement its terms. Specifically, complainant
alleged that the agency retaliated against him when management denied
him sufficient official time to process EEO complaints and refused to
process his complaints in a timely manner.<3>
The settlement agreement provides, in pertinent part, that �[n]o reprisals
will be taken against [complainant] as a result of this agreement.�
In its October 22, 1998 action, the agency notified complainant that
because he was alleging breach of settlement there was no need to file
a new complaint. In addition, the agency concluded that no breach of
settlement occurred. This appeal followed.
ANALYSIS AND FINDINGS
Untimely Contact With An EEO Counselor
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of an Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
The agency or the Commission shall extend the 45-day time limit when the
individual shows that he was not notified of the time limits and was not
otherwise aware of them, that he did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he was prevented by circumstances beyond his
control from contacting the Counselor within the time limits, or for other
reasons considered sufficient by the agency or the Commission.
29 C.F.R. � 1614.105(a)(2).
It is undisputed that complainant made initial contact with an EEO
Counselor on March 30, 1998 regarding an alleged discriminatory act of
January 20, 1998. Complainant's contact exceeded the 45-day time limit
by 24 days. In his appeal, he indicates that the time limit should be
extended because management impeded his processing of EEO complaints.
He provides five Items 0-13 requesting time to process complaints and
one Form 3971 suspending him for four days as proof.
Only three of the five Items 0-13 and the one Form 3971 are dated within
the 45-day time frame. In fact, the suspension which began February
17, 1998 shows that complainant had the opportunity to contact an
EEO counselor within 45 days after the alleged discriminatory event.
In addition, complainant does not indicate what circumstances beyond
his control changed to allow him to finally contact an EEO Counselor.
Accordingly, the agency's dismissal is affirmed.
Breach of Settlement Agreement
EEOC Regulation 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.504(a)) provides that any
settlement agreement knowingly and voluntarily agreed to by the parties,
reached at any stage of the complaint process, shall be binding on both
parties. It further provides that if a complainant believes that the
agency has breached the settlement agreement, he may request that the
terms of the agreement be specifically implemented or that the complaint
be reinstated for further processing. However, claims of breach of a
settlement agreement resulting from subsequent acts of discrimination
should be processed as separate complaints rather than as a breach of
settlement. 29 C.F.R. � 1614.504(c); see Nwankpa v. Department of the
Army, EEOC Request No. 05931161 (June 10, 1994).
On March 30, 1998, complainant filed two precomplaints with his agency's
EEO office. In both precomplaints, complainant alleged that the agency
breached their November 13, 1997 settlement agreement by retaliating
against him. Specifically, complainant alleged that the agency denied
him sufficient official time to process EEO complaints and refused to
process his complaints in a timely manner.
Complainant's claims were in accordance with the following pertinent part
of their settlement agreement, �[n]o reprisals will be taken against
[complainant] as a result of this agreement.� On October 22, 1998,
the agency found that complainant's breach of settlement claim did not
warrant a new complaint and that no breach occurred.
Complainants are entitled to reasonable official time to process their EEO
complaints. What is reasonable depends on the individual circumstances of
each complaint, however, the regulation does not envision large amounts
of official time for preparation purposes. See 29 C.F.R. � 1614.605;
EEOC Management Directive (MD) 110, as revised, November 9, 1999.
The record taken as a whole suggests that the agency granted complainant
some time to process complaints but the agency failed to include
documentation of the amount of official time, from January 1998 through
March 1998, complainant was granted. <4> Documentation of the specific
amount of time will assist in determining whether complainant was granted
a reasonable amount of official time. Therefore, the Commission shall
VACATE the agency's final action and REMAND the matter to the agency
so that it can supplement the record with the appropriate documents,
as indicated above and process the matter accordingly. See 29 C.F.R. �
1614.108, .404.
In addition, complainant expressed dissatisfaction with the processing of
his complaints. Such dissatisfaction alone does not render complainant
aggrieved. Thomason v. Department of the
Army, EEOC Request No. 05970809 (Sep. 05, 1997). Complainant should
notify the head of the EEO office within his agency of his concerns
regarding the processing of complaints. Id.
Accordingly, the agency's dismissal regarding official time is vacated and
remanded and its dismissal regarding complaint processing is affirmed.
CONCLUSION
It is the decision of the Commission to AFFIRM a portion of the agency's
dismissal of complainant's complaint and to VACATE and REMAND a portion
to the agency so that it can supplement the record with the appropriate
documents and process the matter accordingly, as indicated above.
ORDER
The agency is ORDERED to, within thirty (30) calendar days of the date
this decision becomes final, supplement the record with documentation
indicating the amount of official time it granted complainant to process
complaints between January and March 1998. See 29 C.F.R. � 1614.404(a).
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant of the appropriate rights within forty
five (45) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time.
A copy of the agency's letter of acknowledgment to complainant and an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (T1199)
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:
Jan 5, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal OperationsCERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
Neither appeal has a legible postmark. The Office of Federal Operations
(OFO) received both appeals within five calendar days of the expiration
of their respective filing periods. 29 C.F.R. � 1614.604(b).
2A PS Form 2564-A is a United States Postal Service Information for
Precomplaint Counseling form.
3Complainant submitted copies of five Items 0-13 (U.S. Postal Service
Routing Slip) addressed to his supervisor requesting official time to
process complaints and grievances. The Items 0-13 were dated January 15,
23, & 30, 1998 and March 2 & 18, 1998.
4Shortly before filing the complaint at issue, complainant informed
management that one hour a day was insufficient and at least two hours
a day were needed to process his complaints. Outside of extenuating
circumstances, two hours a day is not reasonable and the agency's denial
of such time does not render complainant aggrieved, particularly if he
was afforded a reasonable amount of official time.