01a22841_r
07-30-2002
Kenneth R. Hearl, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kenneth R. Hearl v. United States Postal Service
01A22841
July 30, 2002
.
Kenneth R. Hearl,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22841
Agency No. 4A-117-0128-01
DECISION
The record indicates that complainant filed the instant complaint dated
October 10, 2001, alleging that: (1) he was issued a notice of removal
dated April 4, 1999, modified by final and binding arbitration award dated
December 10, 1999, to a 3 months suspension; (2) he was cited being Absent
Without Official Leave (AWOL) on July 28, 2001; (3) he was notified by
letter dated August 9, 2001, that pursuant to a Court Order, his salary
was being garnished; and (4) management failed to install flashing
equipment in the box section. On April 5, 2002, the agency issued its
decision dismissing claim (1) due to untimely EEO Counselor contact,
claim (2) as moot, and claims (3) and (4) for failure to state a claim,
pursuant to 29 C.F.R. �� 1614.107(a)(2), (5), and (1), respectively.
With regard to claim (1), complainant contacted an EEO Counselor on July
13, 2001, which was beyond the 45-day time limit set by the regulations.
On appeal, complainant does not present adequate justification to warrant
an extension of the applicable time limit for contacting an EEO Counselor.
With regard to claim (2), the agency stated in its decision that
the alleged AWOL was subsequently changed to approved sick leave
as complainant had initially requested. However, the agency failed
to provide any evidence to support such contentions other than its
general statement in its decision. Based on the foregoing, the record
is insufficient for the Commission to determine whether claim (2) is
moot. 29 C.F.R. � 1614.107(a)(5). See County of Los Angeles v. Davis,
440 U.S. 625 (1979); see also Glover v. United States Postal Service,
EEOC Appeal No. 01930696 (December 9, 1993). Therefore, the agency
is Ordered, as stated below, to conduct a supplemental investigation
concerning the matter.
With regard to claim (3), the Commission finds that the alleged matter
collaterally attacks the court proceeding, and not the EEO complaint
proceeding; thus, the Commission has no jurisdiction over the matter.
Therefore, the Commission finds that claim (3) fails to state a claim.
Complainant is hereby advised to contest the matter through the District
Court of the County of Suffolk, which ordered a judgement against
his salary.
With regard to claim (4), the agency, undisputed by complainant, stated
in its decision that complainant was not responsible to answer the
door for pick up notice in the box section. The agency indicated that
complainant's bid was a manual distribution clerk and had no reason for
answering the door. Since there is no evidence in the record to show
that complainant was harmed with regard to his employment as a result of
the alleged action, the Commission finds that claim (4) fails to state
a claim.
Accordingly, the agency's decision dismissing claims (1), (3), and
(4) is AFFIRMED. The agency's decision dismissing claim (2) is hereby
VACATED, and claim (2) is REMANDED to the agency for further processing
in accordance with this decision and applicable regulations.
ORDER
The agency shall provide in the record a copy of documentation and/or
any necessary evidence indicating that on October 10, 2001, it made
a payroll adjustment changing the alleged AWOL of July 28, 2001,
to approved sick leave. Thereafter, the agency, within thirty (30)
calendar days of the date this decision becomes final, shall issued a
new final decision concerning claim (2) of the complaint.
A copy of the final decision or notice of processing must be submitted
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
July 30, 2002
__________________
Date