01991056
02-22-2000
Loretta Ward, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Loretta Ward, )
Complainant, )
)
v. ) Appeal No. 01991056
) Agency No. CC-531-0001-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Based on a review of the record, we find that the agency improperly
dismissed complainant's complaint<1> for untimely EEO Counselor
contact. See 64 Fed. Reg. 37,656 (1999) (hereinafter referred to and
codified as 29 C.F.R. � 1614.107(a)(2)). We are not persuaded to the
contrary by the agency's response to complainant's November 18, 1998
timely appeal of the agency's November 13, 1998 final decision (FAD).
The FAD had defined the complaint as alleging discrimination �when on
April 24, 1998, her [complainant's] test score and the test scores of
other individuals...were replaced with a new test score which had been
taken on April 6, 1998.� In its response to complainant's appeal,
wherein she raised no new contentions, the agency averred, in relevant
part, that complainant was terminated as a Transitional Employee (TE)
on November 29, 1997, �and reappointed as a casual employee on December 6,
1997.�
The Commission finds the agency has not properly defined complainant's
complaint. See Smith v. U.S. Postal Service, EEOC Request No. 05921017
(April 15, 1993). A fair reading of her October 28, 1998 formal EEO
complaint and the record as a whole reflects that complainant claimed
that the agency denied her and other Black Transitional Employees the
opportunity to obtain career positions, in violation of a TE agreement.<2>
In her complaint, complainant asserted that her name was among those
names not included on the Hiring Register and that her test scores and
the test scores of other persons who took the �470 Battery Test� were
thrown out prior to termination of the agreement. It appears complainant
indicated she became aware of the alleged discrimination on September
17, 1998, which is also the date of her EEO Counselor contact according
to the EEO Counselor's report (ECR). However, the ECR also noted that
complainant had initially sought counseling on August 25, 1998. In this
regard, the ECR indicates that complainant claimed, as a �class agent,�
discrimination based on race (Black), when, on September 17, 1998, �it was
learned the policy of not exhausting the register was discriminatory,
and management violated the TE agreement of the contract.� The ECR
further stated that complainant's appointment as a TE expired November 29,
1997. �[Complainant] took the Battery 470 exam with the general public on
[April 6, 1998]. Her scores were entered on the register on [April 24,
1998] for Flat Sorter Machine Operator; Distribution Clerk, Machine;
Carrier; and Clerk. Her TE scores were discontinued with the exception
of Mail Processor which she did not select when she took the exam on
[April 6, 1998] with the general public. [Complainant's] Mail Processor
score from an exam she took as a [TE] on [November 26, 1996] remains on
the register.�
The Commission further finds that the agency has not met its burden of
providing sufficient evidence in support of a timeliness determination;
nor has it provided an adequate record in support of the FAD. See Guy
v. Department of Energy, EEOC Request No. 05930703 (January 14, 1994); and
Henry v. U.S. Postal Service, EEOC Request No. 05940897 (May 18, 1995),
respectively.<3> In addition, where, as in the present case, an agency
seeks to dismiss an EEO complaint for untimely EEO Counselor contact,
i.e., contact that occurs beyond 45 days from the alleged discriminatory
event,<4> the Commission has required EEO Counselors to inquire into the
reasons for the purported delay in initiating EEO contact. See McDonald
v. Department of Transportation, EEOC Request No. 05960642 (August 11,
1998). In the present case, we find no evidence that the EEO Counselor
conducted such an inquiry.
Having reviewed the entire record, the arguments on appeal, including
those not expressly addressed herein, and for the foregoing reasons, the
Commission hereby VACATES the FAD and REMANDS complainant's complaint
for further processing consistent with the Commission's decision and
applicable regulations. The parties are advised that this decision
is not a decision on the merits of complainant's complaint. The agency
shall comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to take the following actions:
1. Within thirty (30) calendar days from the date this decision
becomes final, the agency shall refer complainant to EEO counseling for
clarification of the issues and bases of discrimination in her October 28,
1998 formal EEO complaint. Complainant shall not be permitted to raise
new issues during this counseling. However, she will not be required
to refile her October 28, 1998 complaint.
2. During the counseling session, the Counselor shall obtain relevant
dates when complainant's issues arose and, if applicable, shall obtain
an explanation from complainant as to why she did not contact an EEO
Counselor in a timely manner.
3. The Counselor shall also inquire into whether complainant is seeking
class certification for her complaint and, if so, to process that
complaint in accordance with the Commission's applicable regulations
and the Directive cited in this decision.
4. At the conclusion of counseling, the Counselor shall issue a
supplemental EEO Counselor's report satisfying the applicable requirements
of this Order, i.e., addressing the issues and bases in complainant's
complaint; inquiring into the timeliness of complainant's EEO contact;
and the processing of the complaint as a class action.
5. If an agreement is reached on the issues and bases in complainant's
complaint, and the agency finds her complaint acceptable, the agency
shall issue a Letter of Acceptance to complainant accordingly.
6. If there is disagreement as to the issues in complainant's complaint,
or if the agency does not find those issues acceptable for processing,
the agency shall then issue a new final decision (FAD) , with appeal
rights to the Commission, defining complainant's complaint, i.e., her
October 28, 1998 complaint; and, if applicable, dismissing that complaint
in accordance with 64 Fed. Reg. 37,656 (1999) (hereinafter referred to
and to be codified as 29 C.F.R. � 1614.107, in relevant parts).
7. The new FAD shall list all legal grounds for dismissal, as well
as the facts and documentation relied on. The agency shall not dismiss
claims de facto by not addressing them.
8. The agency shall also make certain that all terms of art are explained
(e.g., the �470 Battery� test), and that all applicable documents
referred to (e.g., the TE and collective bargaining agreements) are
included in the agency complaint file pertaining to this matter.
9. All Ordered actions, including the supplemental EEO Counselor's
report, Letter of Acceptance, and/or new FAD, shall be effected within
ninety (90) calendar days from the date the Commission's decision becomes
final in this matter.
10.True copies of the supplemental EEO Counselor's report, Letter of
Acceptance, and/or new FAD, and all relevant documents, must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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
(R1199)
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:
February 22, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 We note, in the present case, that complainant has not challenged
the FAD's disposition of her complaint as an individual complaint,
notwithstanding the fact that she denominated her complaint as a �class
action.� See 64 Fed. Reg. 37,658 (1999) (hereinafter referred to and to
be codified as 29 C.F.R. � 1614.204); and see the Commission's revised
Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110) (November
9, 1999) Ch. 2, � IX; and Ch. 8 at 2-16. In light of our decision to
vacate the FAD in this case, the Commission expects the agency to inquire
into whether complaint intends to pursue a class complaint and, if so,
to process the complaint in accordance with applicable regulations and
the EEO-MD-110 as set forth above.
3We also note, for example, with regard to the adequacy of the record,
that the agency has not provided the Commission with relevant portions
of documents pertaining to the purported TE agreement or other pertinent
agency contracts. A June 4, 1997 agency memo appears to reference several
TE agreements, as well as a collective bargaining agreement (CBA). None
of these documents appears to be contained in the record in the present
case, particularly within the context of complainant's reliance on the
agreement in alleging discrimination and initiating EEO counseling.
4See 64 Fed. Reg. 37,656 (1999) (hereinafter referred to and to be
codified as 29 C.F.R. � 1614.105(a) in pertinent parts).