01A20165_r
03-13-2003
James E. Slate, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James E. Slate v. United States Postal Service
01A20165
March 13, 2003
.
James E. Slate,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20165
Agency No. 4-D-270-0108-01
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision pertaining to his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
On July 25, 2001, complainant contacted the EEO office regarding claims
of discrimination based on age, disability and in reprisal for prior
protected activity. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, on May 24, 2001, complainant filed a
formal complaint. In its final decision, the agency framed the claims
as follows:
(1) Complainant was issued a Letter of Warning (LOW) dated December
16, 1999;
(2) Complainant was issued a 7-Day Suspension dated February 1, 2000;
(3) Complainant was issued a 14-Day Suspension dated March 17, 2000; and
(4) Complainant was issued a Notice of Proposed Removal dated June 29,
2000.<1>
On September 5, 2001, the agency issued a final decision dismissing
claims (1), (2) and (3) on the ground that they state the same claims
that have been decision by the agency or Commission. Specifically, the
agency reasoned that the claims were previously addressed in complaint
number 4-D-270-0041-01. The agency dismissed claim (4) on the grounds
of untimely EEO Counselor contact. According to the agency, complainant
contacted the EEO Counselor approximately one year after the alleged
discriminatory event.
On appeal, complainant argues that claims (1) - (3) are not identical
to Case No.4-D-270-0041-01. Complainant asserts that the matters raised
in the earlier case occurred on December 15, 2000 and January 12, 2001.
Complainant contends that while the claims concern the same managers,
they nevertheless describe different claims.
Claims (1) - (3)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
As noted above, the agency dismissed claims (1), (2) and (3) on the
grounds that they were previously raised in Case No. 4-D-270-0041-01.
However, the record does not contain a copy of the complaint from
Case No. 4-D-270-0041-01, nor any other documentation showing which
claims were contained in the earlier case. Therefore, we are unable
to determine whether the claims were properly dismissed pursuant to
29 C.F.R. � 1614.107(a)(1). Clearly, it is the burden of the agency
to have evidence or proof to support its final decision. See Marshall
v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
The Commission finds that the dismissal of claims (1), (2) and (3)
is not supported by the record and is improper.
Claim (4)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record shows that complainant contacted the EEO office on July
25, 2001, regarding a Notice of Proposed Removal dated June 29, 2000.
Complainant has not provided any reason for his late contact. Therefore,
we find that the agency's decision to dismiss claim (4) was proper.
Accordingly, the agency's decision to dismiss claims (1), (2), and (3)
was improper, and is hereby REVERSED. Claims (1), (2), and (3) are
REMANDED to the agency for further processing in accordance with this
decision and the Order below. The agency's decision to dismiss claim
(4) was proper and is hereby AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims (claims (1) - (3))
in accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 13, 2003
__________________
Date
1Although the agency did not number the claims, we do so herein for
purposes of clarification.