Hubert A. Williams, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 14, 1999
01981408 (E.E.O.C. Jan. 14, 1999)

01981408

01-14-1999

Hubert A. Williams, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Hubert A. Williams v. United States Postal Service

01981408

January 14, 1999

Hubert A. Williams, )

Appellant, )

)

v. ) Appeal No. 01981408

) Agency No. 4A-100-0153-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

_________________________________)

DECISION

Appellant filed the instant appeal from the agency's August 21, 1997

decision dismissing a portion of appellant's complaint for failure to

timely contact an EEO Counselor (allegations 1 - 7) and a portion of the

complaint (allegations 10 and 11) for failure to raise the matter with

an EEO Counselor. The agency also accepted a portion of the complaint

for investigation.

Allegations 1 - 7 concern disciplinary actions, overtime denial, and

failure to recognize appellant's involvement in a particular action.

The Commission finds that all of these incidents occurred more than 45

days prior to appellant's initial contact of an EEO Counselor on May 16,

1997. The Commission finds that these incidents are not timely under the

continuing violation theory, because we find that appellant should have

reasonably suspected discrimination regarding these incidents more than

45 days prior to May 16, 1997 (the initial EEO Counselor contact date).

Therefore, we find that the agency properly dismissed allegations 1 -

7 pursuant to 29 C.F.R. �1614.107(b).

Appellant argues on appeal that he raised allegations 10 (AWOL) and 11

(removed from bid position) with an EEO Counselor on the date that the

incidents occurred, that the EEO Counselor researched the allegations,

and that the EEO Counselor "reported his finding verbally to me . . ."

Appellant argues:

We concluded this to be counseling . . . Additionally, he did not at any

time [inform] me that I needed to put these acts of reprisal in writing.

Therefore, I felt that as long as he was doing the research every aspect

would be included[.]

Although the EEO Counselor's report does not reflect that allegations 10

and 11 were raised with an EEO Counselor, the agency has not supplied

a statement from the EEO Counselor specifically addressing appellant's

arguments that he raised allegations 10 and 11 with an EEO Counselor.

Given the nature and specificity of appellant's arguments, the Commission

finds that a statement from the EEO Counselor should be obtained by the

agency addressing appellant's contentions. The Commission shall remand

allegations 10 and 11 to the agency so that it may supplement the record

with an affidavit from the EEO Counselor addressing whether appellant

raised allegations 10 and 11 with an EEO Counselor. The agency shall

thereafter redetermine whether allegations 10 and 11 should be dismissed

pursuant to �1614.107(b).

The agency's decision dismissing allegations 1 - 7 is AFFIRMED.

The agency's decision dismissing allegations 10 and 11 is VACATED and

we REMAND allegations 10 and 11 to the agency for further processing in

accordance with this decision and applicable regulations.

ORDER

The agency shall supplement the record with an affidavit from the EEO

Counselor addressing whether appellant raised allegations 10 and 11 with

an EEO Counselor. The agency shall then redetermine whether allegations

10 and 11 should be dismissed pursuant to 29 C.F.R. �1614.107(b).

Within 30 days of the date this decision becomes final the agency shall

either issue a letter to appellant accepting allegations 10 and 11 for

investigation or issue a new decision dismissing allegations 10 and 11.

A copy of the letter accepting allegations 10 and 11 or new decision

dismissing allegations 10 and 11 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� (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 (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 14, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations