05970640
01-04-1999
Hilton D. Allgary, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Hilton D. Allgary v. United States Postal Service
05970640
January 4, 1999
Hilton D. Allgary, )
Appellant, )
)
v. ) Request No. 05970640
) Appeal No. 01954187
William J. Henderson, ) Agency No. 4-H-300-1007-94
Postmaster General, )
United States Postal Service, )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On April 1, 1997, Hilton D. Allgary, (hereinafter referred to as
appellant) timely initiated a request to the Equal Employment Opportunity
Commission (Commission) to reconsider the decision in Hilton D. Allgary
v. Marvin T. Runyon, Jr., Postmaster General, United States Postal
Service, EEOC Appeal No. 01954187 (March 11, 1997). EEOC Regulations
provide that the Commissioners may, in their discretion, reconsider any
previous Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence that tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, appellant's request is GRANTED, in part.
ISSUE PRESENTED
Whether the previous decision should be modified to require the agency
to address appellant's expanded definition of the issue involved in his
complaint.
BACKGROUND
The previous decision accurately set forth the pertinent facts and
therefore the factual background provided herein is limited to those
additional facts necessary to our holding herein. The decision found
that the agency had failed to adequately investigate the merits of
appellant's formal EEO complaint.<1> It vacated the agency's final
decision finding no discrimination and remanded the complaint for a
supplemental investigation. In reaching this determination, the previous
decision also addressed appellant's claim that he had withdrawn his
request for a hearing after the EEOC Administrative Judge improperly
limited the issue to a September 28, 1993 single date of occurrence. It
found that the issue was properly limited because the agency's acceptance
letter, which had defined the issue as encompassing only that single
date, stated that if appellant disagreed with the defined issue, he
needed to contact the agency in writing within seven days, and there
was no evidence in the record indicating that appellant had done so.
In appellant's request for reconsideration, he asserts that from the
outset, the agency improperly altered his complaint, which covered a
one year time period, and erroneously limited it to a single date of
occurrence. Appellant further asserts, as he previously alleged on appeal
herein, that he was affirmatively misled by an EEO Counselor/Investigator
who informed him when he called to inquire about the incomplete acceptance
letter that the entire time period cited in his formal complaint would
be considered at the hearing. He claims that he telephoned that official
based on a notice posted by the agency which indicated that he should
phone the EEO Counselor/Investigator with questions concerning the
EEO process. Appellant further asserts that he is entitled to summary
judgement on the merits of his case because he submitted evidence on
appeal sufficient to prove discriminatory disparate treatment. The agency
has not responded to appellant's request.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
appellant's request for reconsideration meets the criteria of 29
C.F.R. �1614.407(c)(2). It is therefore the decision of the Commission
to grant appellant's request, in part.<2>
In this regard, we hold that reconsideration of the previous decision
is warranted pursuant to 29 C.F.R. �1614.407(c)(2) because the record
herein indicates that appellant has previously raised his claim that
he was affirmatively misled by the agency's EEO Counselor/Investigator
whom he asserts told him he would be able to address the entire time
period at the hearing. The agency has never rebutted this allegation and
the previous decision did not address it. Moreover, our review of the
record indicates that appellant raised the one year time frame both in
his request for EEO counseling and his formal complaint, yet the agency
never specifically rejected that portion of appellant's complaint in a
final agency decision which would have afforded appellant appropriate
appeal rights. A determination to limit the scope of appellant's
complaint in such a severe manner, with significant consequences for both
the breadth of the agency's investigation and the relief available if
appellant were to prevail, clearly ought to have been made in a final
agency decision, with an explanation of the basis for the rejection
and appropriate appeal rights. Based on the foregoing, we will modify
the order of the previous decision to instruct the agency to respond to
appellant's allegation that the named EEO Counselor/Investigator misled
appellant with regard to his rights herein. Thereafter, the agency shall
either accept and investigate the remainder of appellant's claim or issue
a final agency decision specifically rejecting portion(s) of appellant's
complaint and affording appellant appropriate appeal rights. Thereafter,
the agency shall conduct a supplemental investigation of the complaint
as directed by the previous decision.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request meets the criteria of 29 C.F.R. �1614.407(c)(2), and it is
the decision of the Commission to GRANT his request, in part. The
decision of the Commission in EEOC Appeal No. 01954187 (March 11,
1997) is MODIFIED in part and the agency's final decision is VACATED.
Appellant's complaint is REMANDED for further processing. The agency
is directed to comply with the previous decision's modified Order set
forth below. There is no further right of administrative appeal from a
decision of the Commission on a request to reconsider.
ORDER (E1092)
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall respond to appellant's allegation that the EEO
Counselor/Investigator affirmatively misled him regarding its definition
of the issue in his complaint. Thereafter, the agency shall issue a
decision which either accepts the remaining time period covered by the
complaint or specifically rejects it or any portion thereof, affording
appellant appropriate appeal rights thereon.
2. The agency shall hold the supplemental investigation in abeyance until
the matter of the scope of the accepted issue herein has reached a final
determination. Thereafter, the agency shall address the circumstances
under which appellant was denied overtime during the accepted time period
and shall identify, by age, any employees who were permitted to perform
appellant's duties in an overtime capacity during that time period. In
so doing, the agency shall obtain a statement from the Supervisor which
addresses the events alleged by appellant during the accepted time
period.
If the issue for investigation is expanded in scope, after the
supplemental investigation is concluded, the agency shall afford appellant
notice of the completion of the investigation, a copy of the investigative
file and notice of the right to request a hearing as set forth in 29
C.F.R. �1614.108(f). The supplemental investigation and issuance of the
subject notification and hearing rights must be completed within sixty
(60) calendar days of the date a final decision concerning the scope of
the accepted issue becomes final. A copy of the notice must be submitted
to the Compliance Officer, as referenced below.
If the issue for investigation is not expanded in scope, then the agency
shall issue a final agency decision on the merits of appellant's complaint
herein after the supplemental investigation is completed. The supplemental
investigation and final agency decision on the merits of the complaint
must be issued within sixty (60) calendar days of the date a decision
concerning the scope of the accepted issue becomes final. A copy of
the final agency decision must be submitted to the Compliance Officer,
as referenced below.
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.
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:
JAN 4, 1999
___________________ _____________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1In that complaint, appellant alleged that the agency discriminated
against him based on his age (57) when it refused to allow him to work
overtime between October 1992 and September 28, 1993.
2We do not find appellant's arguments that he has already proven
discrimination to be persuasive.