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.