01993095
05-11-2000
Edward A. Maggio, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Edward A. Maggio, )
Complainant, )
)
v. ) Appeal No. 01993095
) Agency No.1B-022-0010-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On March 2, 1999, the complainant filed a timely appeal from a February 4,
1999 final agency decision dismissing his complaint. <1>
In its final agency decision, the agency framed the issue of the
complainant's December 5, 1998 complaint as whether the complainant was
subjected to discriminatory harassment based on his age (October 12,
1947), disability, and in retaliation for prior EEO activity when on
August 6, 1998, the complainant became aware that a supervisor spread
a rumor that the complainant was the cause of the curtailment of a
co-worker's lunch hour. The agency dismissed the complaint, pursuant
to 29 C.F.R. � 1614.107(a)(1), on the grounds that the complaint stated
the same claim as the complaint in Agency No. 1B-022-0008-98 which was
settled. The agency also dismissed the complaint on alternative grounds.
The agency noted that in his present complaint, the complainant identified
an alleged discriminatory event that occurred on August 6, 1998.
During EEO counseling, the complainant identified an event concerning
not being picked up at his home on September 17, 1998. The agency
concluded that since the issue raised in the present complaint was not
the same issue that was raised during EEO counseling, the complainant
had abandoned the issue concerning the September 17, 1998 incident.
The record contains an EEO Counselor's Report which reveals that the
complainant alleged that on September 17, 1998, he was not picked
up for work. He also alleged that he was on light duty and that the
agency had to provide him with transportation to work. In addition,
the complainant alleged that management called his home and disturbed
his family at 12:28 a.m. The Counselor's Report also indicates that
the complainant was placed on absence without leave (AWOL) because he
did not report for work.
In his December 5, 1998 complaint, the complainant specifically alleged
that he was discriminated against on August 6, 1998, when:
I believe management wants to punish and humiliate me for being on
permanent limited duty. I am being used as a wedge with fellow craft
employees to create a hostile work environment and in retaliation.
In his request for relief, the complainant requested, among other things,
the cessation of all rumors and punishment and a �true reasonable
accommodation� and possible reassignment as a modified clerk.
On appeal, the complainant asserts that the agency misinterpreted his
complaint, that the present complaint was not settled, that he has not
abandoned his complaint and that he is being subjected to harassment
and a hostile work environment. He asserts that as a reasonable
accommodation to him, he was to be picked up at his home and taken to
work but he was not accommodated by the agency on September 17, 1998.
He argues that he is disabled because of the loss of his left hand and
that he requested reasonable accommodation for his disability.
The Commission finds that the allegations of the complaint are not
entirely clear. Consequently, it cannot be determined that the issue
of the complaint as identified in the final agency decision is the issue
raised in the complaint. In this regard, the Commission notes that
although the complainant did not specifically refer to the September
17, 1998 incident in his complaint, the complaint reflects that the
complainant asked for a reasonable accommodation and it appears that being
taken to work may have been the accommodation given to the complainant.
The agency may, therefore, have misdefined the complaint. See Smith
v. U.S. Postal Service, EEOC Request No. 05921017 (April 13, 1993).
Having decided as we have, the Commission will not address whether
the complaint as defined in the final agency decision was the subject
of a prior complaint that was settled, whether the issue raised in the
present complaint was not an issue that was raised during EEO counseling,
or whether the complainant abandoned the issues raised during EEO
counseling.
Based on the foregoing, the Commission hereby VACATES the agency's
dismissal of the complainant's complaint and REMANDS the complaint
for further processing consistent with the Order below and applicable
regulations. The parties are advised that this decision is not a decision
on the merits of the complainant's complaint.
ORDER
The agency is ORDERED to take the following actions:
1. Within thirty (30) calendar days from the date this decision
becomes final, the agency shall refer complainant to EEO counseling for
clarification and identification of the issue(s) in his December 5, 1998
formal EEO complaint. He will not be required to refile his December 5,
1998 complaint.
2. At the conclusion of counseling, the Counselor shall issue a
supplemental EEO Counselor's report satisfying the applicable requirements
of this Order.
3. If an agreement is reached on the issue(s) in the complainant's
complaint, and the agency finds the complaint acceptable, the agency
shall issue a letter of acceptance to the complainant. If, however,
an agreement cannot be reached on a definition of the issue(s) in
complainant's December 5, 1998 complaint, then the agency shall issue
a new final agency decision defining the complaint, with appeal rights
to the Commission. The agency shall not dismiss claims de facto, by
failing to define or address claims.
4. If the agency intends to dismiss the complainant's complaint in
its entirety, it must do so in a new final agency decision, with appeal
rights to the Commission, stating all legal grounds, facts, and documents
relied upon. The agency may not dismiss complainant's complaint in part.
If the agency does not intend to accept all of the complainant's claim(s)
for investigation, the agency shall proceed in accordance with the
Commission's revised regulations set forth at 64 Fed. Reg. 37,656 (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.107(b)).
Moreover, the agency shall ensure that all relevant, as well as
referenced, documents are produced and made a part of the record in
this case. The agency shall issue but one final decision with regard to
both the definition of the claim(s) and bases of alleged discrimination,
and any dismissal of the complainant's complaint.
5. The agency shall complete all the above ordered actions, including
issuance of the final agency decision, within ninety (90) calendar days
of the date that this decision becomes final.
A copy of the agency's letter to the complainant arranging a meeting with
an EEO Counselor, and a copy of the acceptance letter and/or final agency
decision issued 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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
May 11, 2000
________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE 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.