01977106
10-29-1999
John W. Simpson, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John W. Simpson, Jr. v. United States Postal Service
01977106
October 29, 1999
John W. Simpson, Jr., )
Appellant, )
)
v. ) Appeal No. 01977106
) Agency No. 4-G-730-1118-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
discrimination based on race (Black), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e, et seq.
Appellant alleges he was discriminated against when he was denied
overtime opportunities. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision is
VACATED, and the complaint is REMANDED for processing.
The record reveals that during the relevant time, appellant was employed
as a bulk mail technician at the agency's Oklahoma City, Oklahoma
facility. Believing that he had been denied overtime opportunities
on the basis of his race, appellant initiated EEO Counseling on March
15, 1995. Appellant's Request for Counseling stated that on March
14, 1995, the union president condoned "discriminatory practices"
by declining to represent appellant in challenging them, but did
not define the practices at issue. See Record of Investigation (ROI)
at 113-14. The EEO Counselor's Report stated the allegation as follows:
"Complainant alleged he was discriminated against in that on March 14,
1995, he was denied overtime opportunities allowed other employees."
ROI at 94. Appellant subsequently filed a formal complaint on July
19, 1995, in which he stated on the complaint form that his supervisor
"repeatedly denied me the overtime opportunities that she allowed other[s]
in the bulk mail unit," and asserted that she "has engaged in a long term
policy" of disparate treatment of appellant compared to white employees
in the unit. ROI at 93. On the complaint form, appellant listed March
14, 1995 in the box marked "Date on Which Alleged Act of Discrimination
Took Place," as well as incorrectly listing March 14, 1995 as the date
on which the complaint was filed.
By letter dated August 31, 1995, the agency advised appellant that his
complaint was accepted for investigation, and that the scope of the
investigation would include the issue of whether he was "denied overtime
opportunities allowed other employees." ROI at 90-92. The letter then
listed the "Date(s) of Incident" as March 14, 1995. The letter advised
appellant of his right to file any objections to the defined issue within
seven days. Appellant did not file objections.
In his investigation affidavit, appellant alleged, inter alia, that he
had been denied overtime opportunities because of his race "from July of
1994 until the present January 29, 1996." ROI at 9 (Affidavit A at 1).
The investigative file also contained, inter alia, supervisors' affidavits
and documentation pertaining to the March 14, 1995 denial of overtime,
as well as an affidavit from the Supervisor of Bulk Mail Entry (Tour 2)
regarding denial of overtime to appellant on June 27, 1995. ROI Exhibit
34. Appellant was forwarded a copy of the investigative file with a
notice of his right to request a hearing before an EEOC Administrative
Judge (AJ), but did not reply. Accordingly, the agency issued its FAD.
The FAD confined its analysis to the denial of overtime on March 14, 1995,
although it noted that appellant also alleged that the Managers of Bulk
Mail had removed him from the overtime desired list and blocked overtime
opportunities of senior Bulk Mail Reliefs on the first floor through
a grievance settlement. The FAD did not separately analyze whether or
not appellant established a prima facie case, but proceeded to find that
appellant had failed to demonstrate discrimination by a preponderance of
the evidence. The FAD noted that the only employee to receive overtime
on March 14, 1995, had received 1.04 hours of end-of-tour overtime on
that date, and had a regularly scheduled end-of-tour time of 2030 hours.
Because appellant's regularly scheduled end-of-tour time was 1730 hours,
the FAD reasoned that appellant had not proven there had been a need for
overtime at the end of his tour on March 14, and that even if he had
done so, it would have been insufficient to prove disparate treatment
based on race.<1> The FAD further noted that the crux of appellant's
allegation appeared to be an objection to the union seniority system for
overtime as it applied to Bulk Mail Relief employees such as himself,
rather than a matter covered by Title VII.
On appeal, appellant contends that the agency's investigation was
incomplete and inaccurate because the agency failed to include in the
investigative file or to address approximately fifty pages of documents he
submitted to the EEO investigator containing overtime records revealing
approximately 103 instances when he was improperly denied overtime.
Appellant also contends that the individual responsible for processing
EEO complaints in the Oklahoma District used to be the Director of Human
Resources, thus allegedly creating a conflict of interest. In reply,
the agency contends that the documents to which appellant refers concern
103 overtime opportunities arising on dates other than March 14, 1995,
and therefore are not relevant to the issue accepted for investigation.
The agency contends that because appellant failed to object to the
definition of the issue accepted for investigation within the seven days
allotted, or to request a hearing before an EEOC AJ as an alternative
means of supplementing the record, appellant cannot now challenge the
FAD's limitation of the incident at issue to March 14, 1995. The agency
further contends that there is no conflict of interest presented by the
personnel assigned to its EEO office, and that the crux of appellant's
complaint is that he objects to union contract provisions permitting
overtime being granted to employees with less seniority than him in
various situations depending on factors other than seniority, such as
craft, job duties, tour of duty, and so on.<2>
After a careful review of the record, the Commission concludes that
appellant may have been misled by the wording of the complaint acceptance
letter, which as noted above, defined the issue for investigation as
the denial of overtime "opportunities" (plural), yet separately listed
a single incident date. Similarly, when appellant received the record
of investigation, although it once again defined the issue as pertaining
to March 14, 1995, it contained an affidavit from a supervisor regarding
denial of overtime to appellant in June, 1995. ROI Exhibit 34. Appellant
was therefore potentially misled, in the particular circumstances of this
case, to believe that the investigation and FAD would address the ongoing
denial of overtime he identifies in the text of his formal complaint.
It is appropriate for the agency to determine on exactly what dates
appellant contends he was denied overtime, and to process the allegation,
considering any documents previously submitted by appellant which are
in fact relevant, as well as any additional documents or supplemental
affidavits which are necessary for proper processing of the clarified
allegation.
Accordingly, the FAD is VACATED, and this matter is REMANDED to the
agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following action:
1. The agency is ORDERED to conduct a supplemental investigation to
ascertain on what dates appellant contends he was denied overtime based
on his race, and to process his allegations accordingly.
2. Thereafter, the agency shall issue a final decision, with appeal
rights. The supplemental investigation and issuance of the final decision
must be completed within one hundred twenty (120) calendar days of the
date this decision becomes final.
A copy of the agency's new final decision or the notice of processing
must be sent 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.
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 (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:
10/29/99
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency could not locate the overtime desired list for appellant's
tour on March 14, 1995. Appellant's acting supervisor for that date
attested that she had no recollection of allowing or denying overtime
for anyone on that date, but that she generally awarded overtime in
accordance with a local union policy giving preference to "in-office"
clerks based on seniority and on a rotating basis.
2The agency notes that appellant's request for EEO counseling stated
that he sought to challenge "a multitude of contract violations."