01A43841_r
11-22-2004
Kaan Ramsay, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kaan Ramsay v. United States Postal Service
01A43841
November 22, 2004
.
Kaan Ramsay,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43841
Agency No. 1A-116-0011-04
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated April 19, 2004, dismissing her 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. In her complaint, complainant alleged that she was subjected
to discrimination on the bases of disability and reprisal for prior EEO
activity when:
Complainant was not permitted to work holidays and/or overtime during
the period May 26, 2003, through November 27, 2003.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(2), on the grounds that complainant
failed to timely contact an EEO counselor. The agency stated that
complainant did not initiate EEO counselor contact until January 20, 2004,
which was beyond the applicable limitations period. Alternatively, the
agency dismissed complainant's complaint on the grounds that complainant's
complaint was signed by her representative and not signed by complainant
or her attorney as specified in the EEOC regulations.
On appeal, complainant states that a class complaint was filed on
December 16, 2003, under the names of Person A, Person B and complainant.
Complainant claims that the class complaint was dismissed and per this
dismissal, she then filed a separate complaint.
Upon review, the Commission is unable to determine whether complainant's
complaint was properly dismissed. On appeal and in her Information for
Pre-Complaint Counseling form, complainant states that a class complaint
was filed on the present issues on December 16, 2003. The agency does
not respond to complainant's claim that she originally filed a class
complaint on the present issues on December 16, 2003, which was dismissed
by the agency. Thus, we are unable to determine whether complainant's
counselor contact was timely made.
EEOC Regulation 29 C.F.R. � 1614.106(c) provides that �[a] complaint must
contain a signed statement from the person claiming to be aggrieved or
that person's attorney.� In the present case, complainant's complaint
was signed by Representative A, who does not claim to be an attorney.
The complaint was not signed by complainant. The agency has not claimed
that after the complaint was filed the agency requested that complainant
sign the complaint. The Commission finds that the agency should have
made such a request before dismissing the complaint. The Commission
shall remand the matter so that the agency may request that complainant
sign the complaint. If complainant refuses to sign the complaint,
then the agency may dismiss the complaint for failure to comply with 29
C.F.R. � 1614.106(c).
Accordingly, the agency's decision dismissing complainant's complaint
is VACATED and the complaint is REMANDED for further processing in
accordance with the Order listed below.
ORDER
The agency shall take the following actions:
The agency shall contact complainant and provide her with the opportunity
to sign the formal complaint. Complainant will have 10 calendar days
from the date that she is contacted by the agency in which to sign her
formal complaint.
If complainant signs the formal complaint, the agency shall conduct a
supplemental investigation to ascertain whether complainant made EEO
contact with regard to a class complaint on the issues identified in
the present complaint.
Within 30 calendar days of the date this decision becomes final, the
agency shall issue a notice of acceptance of the complaint or shall
issue a final action with regard to this complaint.
A copy of the agency's new decision or letter of acceptance 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 (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
November 22, 2004
__________________
Date