Megan Owen, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 23, 2000
01982264 (E.E.O.C. Feb. 23, 2000)

01982264

02-23-2000

Megan Owen, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Megan Owen v. United States Postal Service

01982264

February 23, 2000

Megan Owen, )

Complainant, )

)

v. ) Appeal No. 01982264

) Agency No. 4-H-335-0015-98

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 the complaint on the grounds of untimely EEO counselor contact,

pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. �1614.107(a)(2).<1>

The record reflects that Complainant pursued the EEO complaint process

relating to the processing of agency forms identified in the record as

"PS Forms 3971 and 3996." On April 29, 1997, Complainant and the

agency reached a settlement agreement concerning the matter relating

to PS Forms 3971 and 3996. On September 26, 1997, Complainant sought

EEO counseling alleging that she had been discriminated against on the

basis of reprisal when on August 2, 1997, her supervisor required her to

sign another PS Form 3971, even though she had already completed a leave

slip for her absence on July 31, 1997. Complainant further alleged

that when she was asked to sign the form in question, she informed

her supervisor that "he was violating [her] previous EEO agreement".

Because her informal complaint was not resolved, Complainant filed a

formal complaint of discrimination concerning the matters raised with

the EEO Counselor, discussed above.

On December 15, 1997, the agency issued a final decision dismissing

the complaint on the grounds of untimely EEO counselor contact after

finding that Complainant had sought EEO counseling "some 55 days after

the incident".

A review of the record shows that Complainant claimed that the settlement

agreement she had reached with the agency in April 1997, was breached

by the supervisor's actions on August 2, 1997. Nevertheless, the agency

failed to address her claim. We find that the agency improperly dismissed

the breach claim for untimely EEO Counselor contact. Timeliness of the

breach claim should be decided pursuant to 64 Fed. Reg. 37,644, 37, 660

(1999) (to be codified and hereinafter referred to as EEOC Regulation 29

C.F.R. �1614.504). Accordingly, we find that the final agency decision

was not proper and it is hereby REVERSED. The Commission does not

consider in this decision whether the breach claim was timely raised.

The Complainant's settlement breach claim is hereby REMANDED for further

processing in accordance with this decision and applicable regulations.

ORDER

The agency shall process the claim raised in the instant complaint as

a breach of the settlement agreement of April 29, 1997, pursuant to 29

C.F.R. � 1614.504. Within thirty (30) days of the date that this decision

becomes final, the agency shall issue a decision as to whether it breached

the April 29, 1997 settlement agreement, as claimed by complainant.

A copy of the agency's decision must be sent to the Compliance Officer

as referenced herein.

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).

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 23, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATION 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

1 On 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.