01970927_r
01-20-1999
Leonard Allmon, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Leonard Allmon, )
Appellant, )
) Appeal No. 01970927
v. ) Agency No. 1C-441-1118-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On November 6, 1996, appellant filed a timely appeal of an October 18,
1996 final agency decision dismissing two of four allegations of his
complaint on the grounds that the allegations were not brought to the
attention of an EEO Counselor.
The final agency decision framed the allegations of the July 17,
1996 complaint as whether appellant was discriminated against on the
bases of race (Black), sex (male), age (not specified), and physical
disability (arthritis, heart disease, high blood pressure, gout) when:
(1) on September 20, 1995, he was issued a letter of warning for failure
to maintain a regular schedule; (2) the absence without leave (AWOL)
charge for August 11, 1995, cited in the September 20, 1995 Letter of
Warning should not have been mentioned; (3) AWOLs dated August 11, 1996
and August 14, 1996 were not removed; and (4) a Notice of Suspension on
June 14, 1996, was not removed. In dismissing allegations (3) and (4),
the agency stated that when appellant sought EEO counseling in October
1995, the allegations were not raised with the EEO Counselor and could
not have been since the alleged discrimination occurred after appellant
met with the EEO Counselor.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion of a complaint which
raises a matter that has not been brought to the attention of an EEO
Counselor and is not like or related to a matter that has been brought
to the attention of a Counselor.
A review of the Counselor's Report indicates that when appellant sought
counseling in October 1995, appellant alleged that he was issued a
letter of warning on September 20, 1995, and charged AWOLs for August 11,
1995 and August 14, 1995. No discipline after September 20, 1995 was
raised in the Counselor's Report. When appellant filed his complaint,
he requested as remedies that the AWOL dates of August 11, 1996 and
August 14, 1996 be removed and that a Notice of Suspension of June 14,
1996 also be removed. The agency interpreted appellant's request for
removal of the AWOLs and the Notice of Suspension as allegations (3)
and (4) and then dismissed them.
Regarding the agency's dismissal of allegation (3), the Commission
finds that when appellant mentioned August 11, 1996 and August 14,
1996 in his complaint as AWOL dates, appellant obviously meant August
1995 and not August 1996. The error in the year is obvious because
the Counselor's Report and an August 1995 grievance decision reflect
that appellant was charged AWOL on August 11, 1995 and August 14, 1995.
Moreover, appellant's complaint is dated July 17, 1996, which was clearly
prior to the occurrence of the alleged AWOLs in August 1996. We find,
therefore, that allegation (3), as clarified herein, was brought to the
attention of the EEO Counselor and was improperly dismissed by the agency.
The record supports the agency's determination that appellant did not
raise allegation (4) during counseling and the record does not support a
finding that the June 1996 suspension was related to the 1995 AWOL charge
or the 1995 letter of warning. Accordingly, the agency's dismissal of
allegation (4) was proper. Appellant is advised that he should pursue
EEO counseling on the suspension issue, if he so wishes and if he has
not already done so.
Consistent with our discussion herein, the agency's dismissal of
allegation (3) is REVERSED and allegation (3) is REMANDED to the agency
for further processing. The agency's dismissal of allegation (4)
is AFFIRMED.
ORDER
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (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 (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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:
Jan. 20, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations