01996084
12-19-2000
Jesse J. Butler, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jesse J. Butler v. United States Postal Service
01996084
December 19, 2000
.
Jesse J. Butler,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996084
Agency No. 4H-370-0055-99
DECISION
Complainant filed an appeal from the agency's July 1, 1999 letter
refusing to redefine the claims in the instant complaint beyond those
that were identified in its May 12, 1999 letter identifying the scope
of the investigation to be performed by the agency.<1> The agency
defined complainant's complaint as alleging that he was subjected to
discrimination on the bases of race (perceived Arabian), national origin
(perceived Arabian), disability, and in reprisal for prior EEO activity
when:
On November 14, 1998, complainant was assigned to the longest walking
route for his station.
In a letter dated May 19, 1999, complainant, through his attorney,
requested that the agency include in the scope of its investigation the
following claims:
On November 21, 1998, complainant was followed on his route by his
supervisor in an aggressive and dangerous manner;
On November 16, 17, and 18, 1998, complainant was subjected to a pattern
of being given conflicting instructions on the job, being ordered to
violate safety procedures, and being given a disciplinary warning despite
having complied with the instructions given by his immediate supervisor;
On December 8, 1998, an individual swung his elbows wildly in the
direction of complainant in the men's bathroom; and
On or about December 8, 1998, complainant was set up to be falsely
accused of being absent without leave.
Complainant further alleged that the foregoing incidents constituted
unlawful harassment.
The Commission notes that attached to his April 7, 1999 formal complaint,
complainant included three separate documents identified, respectively,
as "Addendum to PS Form 2564-A" (the Information for Pre-Complaint
Counseling form), a letter to the agency's Office of the Inspector
General, and "Addendum to PS Form 1767 Report of Hazard/Unsafe Condition."
Therein, complainant raised the incidents identified in claims (1),
(2), and (3) which he sought to include in his formal complaint.
The Commission further notes, however, that complainant failed to include
as an attachment to his formal complaint a document he attached to his
Information for Pre-Complaint Counseling form entitled, "Addendum 2 to
PS Form 2564-A" which included a reference to a letter to the Postmaster
(which was not included in the record) wherein he raised the incident
identified in claim (4). Finally, the Commission notes that the record
contains no evidence suggesting that complainant raised the incident
identified in claim (5) until it was referred to in complainant's May 19,
1999 letter objecting to the scope of the agency's investigation.
EEOC Regulation 29 C.F.R. � 1614.106(d) permits a complainant to amend
a pending EEO complaint to add claims that are like or related to
those claims raised in the pending complaint at any time prior to the
agency's mailing of the notice required by 29 C.F.R. � 1614.108(f) at
the conclusion of the investigation. A later claim is "like or related"
to the original complaint if the later claim adds to or clarifies the
original complaint and could have reasonably been expected to grow out
of the original complaint during the investigation. See Scher v. United
States Postal Service, EEOC Request No. 05940702 (May 30, 1995); Calhoun
v. United States Postal Service, EEOC Request No. 05891068 (March 8,
1990).
Complainant and his attorney are advised that much of the confusion and
difficulty encountered in identifying the issues to be investigated in
the instant complaint occurred as a result of complainant's failure to
clearly delineate those incidents which he alleged were discriminatory.
As noted, the addenda to complainant's formal complaint contained
confusing information including their titles, referenced documents
that were not made part of the record, and claims, in particular (4)
and (5), were referred to without significant detail. In any case, as
the incidents identified in claims (2) through (5) constitute part of
the alleged harassment to which complainant was subjected, we find that
they are like or related to the accepted claim, and therefore should
have been accepted for investigation.
Accordingly, the agency's definition of the scope of the investigation
is modified, and we remand the complaint, as redefined in this decision,
to the agency for further processing in accordance with this decision
and the applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims, as defined herein,
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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
(R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
December 19, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.