01995112
11-08-1999
Isaiah B. Israel, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Isaiah B. Israel v. United States Postal Service
01995112
November 8, 1999
Isaiah B. Israel, )
Appellant, )
)
v. ) Appeal No. 01995112
) Agency No. 1-J-609-0048-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was received by
appellant on May 28, 1999. The appeal was postmarked June 8, 1999.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
The record indicates that appellant sought EEO counseling on April
5, 1998 regarding an alleged incident of discrimination occurring on
April 5, 1998. According to the report of the EEO Counselor, appellant
alleged that on April 5, 1998 he had been accosted and threatened with
bodily harm by his supervisor. Informal efforts to resolve appellant's
complaint were unsuccessful.
On October 7, 1998, appellant filed a formal complaint alleging that he
was the victim of unlawful employment discrimination on the bases of race
(Black), and reprisal (prior EEO activity). Thereafter, on November
17, 1998 appellant's attorney sent a letter to the EEO office informing
the agency that several other issues had occurred after appellant's EEO
counseling on April 5, 1998. Appellant's attorney indicated that the
additional issues should be included for investigation by the agency
and should be consolidated with issues previously accepted.
In its final decision dated May 28, 1999, the agency identified the
following issues raised in appellant's complaint:
(1) in April 1998 he was placed in an off duty status;
(2) in August 1998 his leave request was denied
(3) in July 1998 he was issued a notice of removal
(4) on November 6, 1998 his duty assignments were changed;
(5) on October 30, 1998 he was denied two hours leave
(6) on November 6, 1998 he was sent to key out of his regular duty
assignment;
(7) on October 30, 1998 he was denied two hours leave;
(8) in November 1997 he was issued a 7-day suspension;
(9) in December 1997 he was issued a 14-day suspension;
(10) on May 8, 1997 he was issued a 7-day suspension; and
(11) on May 8, 1997 his supervisor made a racially charged remark.
The FAD identified two additional allegations which it accepted for
investigation: an allegation that on April 5, 1998 appellant had been
accosted and threatened with bodily harm and on April 9, 1998 he was
issued a 14-day suspension. The FAD dismissed allegations (1) - (7)
on the grounds that appellant had not brought the allegations to the
attention of an EEO Counselor and were not like or related to issues
brought to the attention of a Counselor. Specifically, the agency
determined that during appellant's EEO counseling on April 5, 1998,
appellant alleged only that his supervisor had accosted him and threatened
him with bodily harm. Moreover, the agency dismissed allegations (8),
(9), (10), and (11) on the grounds that the matters raised therein
occurred more than forty-five days prior to appellant's April 5, 1998
counselor contact.
EEOC Regulation 29 C.F.R. �1614.107(b) states that the agency shall
dismiss a complaint or a portion thereof that raises a matter that
has not been brought to the attention of the counselor and is not
like or related to a matter that has been brought to the attention of
a counselor. A later allegation is "like or related" to matters that
were brought to a counselor's attention, if the later allegation adds to
or clarifies the counseled allegations and could have reasonably been
expected to grow out of the original allegations during investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940623
(June 8, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990); Webber v. Department of Health and Human
Services, EEOC Request No. 01900902 (February 28, 1990).
In the instant case, we find that the record supports the agency's
determination that allegations (1) - (7) were not raised during
counseling. A review of the record clearly indicates that appellant's
contact on April 5, 1998 concerned an allegation that he had been
accosted and threatened by his supervisor. By contrast, the allegations
mentioned by appellant's attorney concern various incidents involving,
among other matters, denial of leave; change in duty assignments; and a
racial comment. The Commission finds that these allegations are separate
and distinct from the counseled issues and were properly dismissed.
We are not persuaded by appellant's appeal contentions to the contrary.
The agency's decision to dismiss allegations (1) - (7) was proper and
is AFFIRMED.
The Commission notes that the FAD dismissed allegations (8), (9), (10)
and (11) on the grounds that they had not been timely raised with an
EEO Counselor. We find, however, under the circumstances of this case,
that allegations (8) - (11) are more properly analyzed in terms of whether
appellant failed to contact an EEO Counselor and whether the matters
raised therein are like or related to a matter for which appellant had
undergone EEO counseling. The record does not contain any evidence that
the allegations were raised with an EEO Counselor. It is clear from the
record that allegations (8) - (11) were not brought to the attention of
the Counselor during appellant's EEO contact on April 5, 1998, and that
they are not like or related to matters for which appellant underwent
counseling. Accordingly, the Commission determines that the agency's
decision to dismiss allegations (8) - (11) was proper and is AFFIRMED.
In summary, the agency's decision dismissing a portion of appellant's
complaint on the grounds that the issues were not properly brought to
the attention of an EEO Counselor, is AFFIRMED for the reasons set forth
herein.
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 (S0993)
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:
11/08/1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations