Gregory A. Brown, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 12, 1999
01981758 (E.E.O.C. Jan. 12, 1999)

01981758

01-12-1999

Gregory A. Brown, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Gregory A. Brown v. United States Postal Service

01981758

January 12, 1999

Gregory A. Brown, )

Appellant, )

)

v. ) Appeal No. 01981758

) Agency No. 4E-956-0006-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

___________________________________)

DECISION

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

December 11, 1997 dismissing appellant's complaint for untimely EEO

Counselor contact.

The Commission finds that the agency properly dismissed allegations 1

(14 day suspension on May 8, 1997) and 2 (April 14, 1997 - appellant

stepped in a hole while delivering mail because the agency failed to

accommodate appellant's medical limitations) on the grounds that appellant

failed to timely contact an EEO Counselor. 29 C.F.R. �1614.107(b).

The Commission finds that appellant should have reasonably suspected the

alleged discriminatory nature of allegation 2, failure to accommodate,

at the time of the incident in allegation 2 which was more than 45

days before he contacted an EEO Counselor. The suspension at issue in

allegation 1 was issued, according to the suspension, because appellant

stepped into a hole on April 14, 1997. The Commission finds that because

appellant already should have reasonably suspected discrimination about

the April 14, 1997 incident prior to the suspension, the disciplinary

action concerning the April 14, 1997 incident should have also reasonably

caused appellant to suspect discrimination. Therefore, we find that

appellant should have reasonably suspected discrimination regarding

allegation 1 at the time he received the notice of suspension which was

more than 45 days before he contacted an EEO Counselor.

In allegation 3 appellant alleged that the agency failed to accommodate

his medical limitations. Appellant alleged that allegation 3 was

"ongoing." Appellant did not define allegation 3 any more specifically.

The Commission finds that this allegation is recurring in nature.

The Commission finds that the portion of allegation 3 occurring 45 days

or less prior to appellant's initial contact of an EEO Counselor on

September 8, 1997 is timely and was improperly dismissed. The portion of

allegation 3 occurring more than 45 days prior to appellant's initial

contact of an EEO Counselor on September 8, 1997 is untimely and

was properly dismissed pursuant to �1614.107(b) because we find that

appellant should have reasonably suspected discrimination when he was

allegedly not accommodated.

The agency defined allegation 4 as follows: "[T]he agency allegedly

retaliated against the complainant when he sought accommodation of his

medical limitations." It is unclear from this definition of allegation 4

what incidents occurred in allegation 4 and when those incidents occurred.

The record does not clarify allegation 4. The Commission can not

determine if allegation 4 was timely raised without clarification of this

allegation. Therefore, we shall remand allegation 4 for clarification.

The agency's decision dismissing allegations 1, 2, and the portion

of allegation 3 occurring more than 45 days prior to appellant's

initial contact of an EEO Counselor on September 8, 1997 is AFFIRMED.

The agency's decision dismissing the portion of allegation 3 occurring 45

days or less prior to appellant's initial contact of an EEO Counselor on

September 8, 1997 is REVERSED and we REMAND this portion of allegation 3

to the agency for further processing in accordance with this decision and

applicable regulations. The agency's decision dismissing allegation 4 is

VACATED and we REMAND allegation 4 to the agency for further processing

in accordance with this decision and applicable regulations.

ORDER

The agency is ORDERED to process the remanded portion of allegation 3 in

accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to

the appellant that it has received the remanded portion of allegation

3 within 30 calendar days of the date this decision becomes final.

The agency shall issue to appellant a copy of the investigative file

and also shall notify appellant of the appropriate rights within 150

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the appellant requests

a final decision without a hearing, the agency shall issue a final

decision within 60 days of receipt of appellant's request. A copy of

the agency's letter of acknowledgement to appellant and a copy of the

notice that transmits the investigative file and notice of rights must

be sent to the Compliance Officer as referenced herein.

The agency shall contact appellant to clarify the specific incidents at

issue in allegation 4 and the dates of those incidents. Within 30 days

of the date this decision becomes final the agency shall either issue

a letter to appellant accepting allegation 4 for investigation or issue

a new decision dismissing allegation 4. A copy of the agency's letter

accepting allegation 4 or a copy of the agency's decision dismissing

allegation 4 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision 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 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.

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 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 (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:

January 12, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations