01995978_r
10-17-2001
Michael D. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael D. Williams v. United States Postal Service
01995978
October 17, 2001
.
Michael D. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995978
Agency No. 1G-753-0073-99
DECISION
The instant appeal is from an agency decision which dismissed
complainant's complaint for untimely EEO Counselor contact pursuant to 29
C.F.R. � 1614.107(a)(2). Complainant timely appealed the agency's decision
dated June 25, 1999, dismissing his complaint of discrimination alleging
that on the bases of religion (Rastafarian) and disability (lower back),
on February 1, 1999, complainant was notified by an arbitration decision
of his termination from the agency.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action.
In its decision, the agency dismissed complainant's complaint on the
ground that complainant failed to contact an EEO Counselor within
the prescribed time frames. Specifically, the agency asserted that
complainant was issued a notice of removal dated January 13, 1998,
which became effective on February 18, 1998, but that complainant did
not initiate contact with an EEO Counselor until February 1, 1999.
Complainant's informal complaint of discrimination indicates that
complainant's initial contact with an EEO Counselor occurred on March
10, 1999. The Commission notes that the EEO Counselor's report was
not included in the record. In addition, there is no documentary
evidence in the record indicating when complainant was removed from his
position or when he knew of his removal. The agency has not shown that
complainant knew about his removal prior to February 1, 1999; however,
complainant states nothing on appeal to rebut the agency's position.
The Commission cannot determine whether complainant's contact with an
EEO Counselor was timely based on the scant information contained in
the record. The Commission requests that the agency supplement the
record to clarify when complainant was issued a notice of removal from
his position and when that removal became effective.
Therefore, the agency's decision is VACATED, and the complaint is REMANDED
to the agency for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to conduct a supplemental investigation and place
evidence in the record establishing the date on which complainant was
issued a notice of removal from his position with the agency, evidence of
when complainant received notice of his removal, and when that removal
became effective. The agency shall then issue a new decision within 30
calendar days of the date this decision becomes final. A copy of the
decision 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 17, 2001
__________________
Date