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

Equal Employment Opportunity CommissionOct 7, 1999
01991062 (E.E.O.C. Oct. 7, 1999)

01991062

10-07-1999

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


Donald T. Dowd, )

Appellant, )

)

v. ) Appeal No. 01991062

) Agency No. 4-H-330-0159-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

_________________________________)

DECISION

Appellant filed the instant appeal from the agency's decision dated

September 11, 1998 dismissing appellant's complaint for failing to timely

contact an EEO Counselor.

The agency defined the complaint as alleging that on November 21, 1997

appellant was denied a second stamp count and subsequently issued a

letter of demand. The agency found that appellant initially contacted

an EEO Counselor on January 13, 1998, which was more than 45 days after

the alleged discriminatory incidents.

On appeal appellant argues that he requested "release" to process his EEO

complaint on November 4, December 1, and December 24, 1997, but that the

"time requested was not fulfilled in a timely manner causing delay."

Furthermore, appellant argues that during this period he frequently

called the EEO Office regarding management's refusal to "release"

appellant in a timely manner.

The EEO Counselor's report states that appellant initially contacted an

EEO Counselor on January 13, 1998. The Information for Precomplaint

Counseling signed only by appellant states that on December 1, 1997

appellant requested an appointment with an EEO Counselor. Copies of

Routing Slips show that on November 4, December 1, and December 24, 1997

appellant informed (or requested of) Person A (having the title referred

to by appellant as "Sup") that time was needed to process EEO matters.

The agency has not addressed whether the agency refused to allow appellant

to contact an EEO Counselor in a timely manner as asserted by appellant

on appeal. Therefore, we shall remand the matter so that the agency

can supplement the record with affidavits from Person A and appropriate

agency officials in the EEO Office as to whether appellant effectively

made timely contact with an EEO Counselor.

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 supplement the record with affidavits from Person A and

appropriate agency officials in the EEO Office as to whether appellant

effectively made timely contact with an EEO Counselor as argued by

appellant in the instant appeal. The agency shall then reconsider whether

the complaint should be dismissed for untimely EEO Counselor contact.

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(c) (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:

October 7, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations