Donald Dowd, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 5, 2000
01991080and1061 (E.E.O.C. Jan. 5, 2000)

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.