Michael Johnson, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01991354 (E.E.O.C. Nov. 5, 1999)

01991354

11-05-1999

Michael Johnson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Michael Johnson v. United States Postal Service

01991354

November 5, 1999

Michael Johnson, )

Appellant, )

)

v. ) Appeal No. 01991354

) Agency No. 98-3742

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination,

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. and the Age Discrimination in Employment Act

of 1967, as amended, 29 U.S.C. �621 et seq. The appeal was postmarked

December 1, 1998. The agency was unable to supply a copy of a certified

mail return receipt or any other material capable of establishing the

date appellant received the agency's final decision. Accordingly,

since the agency failed to submit evidence of the date of receipt, the

Commission presumes that appellant's appeal was filed within thirty (30)

days of receipt of the agency's final decision. See 29 C.F.R. �1614.402.

Appellant contacted an EEO counselor on February 3, 1998, regarding

allegations of discrimination. Specifically, appellant alleged that he

was discriminated against with respect to the following:

(1) Failure to Promote: when he was non-selected for a Clinical Pharmacist

position;

(2) Harassment: when, beginning November 8, 1995 he was subjected to

harassment when he was required to work nights on ten (10) consecutive

evenings. Appellant further alleges that he initiated an EEO complaint

which led to the agency finding fault in the way he has performed his

assigned duties. Appellant also alleges that he has been accused of

providing poor customer service and that he has received work assignments

that are not commensurate with his education; and

(3) Performance Appraisal/Award: when he was denied a three-step salary

increase after he earned the degree of Doctor of Pharmacy.

Informal efforts to resolve appellant's concerns were unsuccessful.

Accordingly, on March 18, 1998, appellant filed a formal complaint

alleging that he was the victim of unlawful employment discrimination

on the bases of race (black), age (unspecified) and reprisal (prior EEO

activity).

On October 21, 1998, the agency issued a final decision accepting

for investigation allegations (1) and (2) of appellant's complaint

but dismissing allegation (3) for untimely counselor contact. The FAD

indicated that in a letter dated March 27, 1998 the agency requested that

appellant provide an explanation for his delay in seeking counseling

regarding his Performance Appraisal which was issued April 27, 1996,

and which was more than forty-five days before appellant's EEO contact

on February 2, 1998. The FAD further indicates that in a letter dated

April 19, 1998, appellant responded to the agency's request by stating

that the Performance Appraisal was to be considered in the decision to

award him a three step pay increase as a result of his attaining a Post

Baccalaureate Doctor of Pharmacy degree on August 7, 1997.

The record indicates that based on appellant's letter of April 19,

1998, the agency determined that allegation (3) of appellant's complaint

regarding his Performance Appraisal/Award was, in fact, an allegation

that he had been denied a three step pay increase after he had earned

his Pharmacy degree in August 1997. In that regard, the agency found

that appellant's counselor contact on February 2, 1998 was well beyond

the applicable time period for seeking counseling as established by EEOC

Regulations.

The Commission finds that based on appellant's April 19, 1998

correspondence, the agency defined the dismissed allegation as alleging

that the agency denied appellant an increase in pay, despite his obtaining

a pharmacy graduate degree in August 1997. Upon review, we find also

that in appellant's letter of April 19, 1998, appellant states that

prior to his counselor contact on February 2, 2998, he met with a named

individual (NI) concerning issues of harassment. Appellant also states

that NI requested him not to file an EEO complaint without first allowing

NI the opportunity to resolve appellant's concerns. Appellant's letter

suggests that appellant believed his discussion with NI to constitute

an "agreement" on appellant's part not to seek counseling provided

that NI would investigate his concerns and attempt to resolve them.

Appellant also suggests in his letter, that NI supported a promotion

for him once he received his pharmacy degree.

The record is unclear as to the identity of NI. It appears from the

some documents of record, that NI is an agency EEO officer. However,

other documents of record suggest that NI is in fact, the Director of

the agency medical center. Appellant indicates in his letter that the

individual "became the director of the VAMC during this time frame." If

NI was an EEO officer at the time appellant alleges he agreed to forbear

filing an EEO complaint, then appellant may have demonstrated that he

timely sought counseling regarding the issue of his pay increase after

receiving his post graduate pharmacy degree. If NI was the Director of

the medical center at the time appellant alleges an agreement was made,

appellant's delay in seeking counseling may be justified if appellant

reasonably relied on assurances from an agency official. See Jackson

v. U.S. Postal Service, EEOC Request No. 05940797 (April 10, 1996).

The Commission has held that where there is an issue of timeliness,

the agency always bears the burden of obtaining sufficient information

to support a reasoned determination as to timeliness. See Williams

v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).

Upon review of the record herein, the Commission is unable to make

an independent determination regarding the timeliness of appellant's

counselor contact. The agency has not met its burden concerning the

issue of untimeliness. We find therefore, VACATE allegation (3) and

REMAND this allegation to the agency for supplementation of the record.

Accordingly, the agency's decision to dismiss allegation (3) based on

untimely counselor contact is VACATED for the reasons set forth herein.

The allegation is REMANDED to the agency for processing in accordance

with the Order below. The parties are advised that this decision is

not a decision on the merits of appellant's allegation.

ORDER

The agency is ORDERED to take the following actions:

Within fifteen (15) calendar days of the date this decision becomes

final, the agency shall undertake a supplemental investigation to

ascertain whether and on what date, appellant met with NI as indicated

in appellant's letter of April 19, 1998.

Within fifteen (15) calendar days of the date this decision becomes final,

the agency shall also supplement the record to indicate the matters

discussed in the alleged meeting between appellant and NI as indicated

in appellant's April 19, 1998 correspondence. The agency shall determine

specifically whether appellant and NI addressed the issue of appellant's

not pursuing an EEO complaint before allowing NI to attempt to resolve

appellant's concerns.

Within fifteen (15) calendar days of the date this decision becomes final,

the agency shall also supplement the record to indicate the identity

of the NI to which appellant's April 19, 1998 letter is addressed,

and to which appellant refers in the body of the letter. Specifically,

the agency shall clarify whether NI is/was an EEO officer or, in fact,

the Director of the agency medical center as appellant indicates in his

clarification letter.

Within thirty (30) calendar days of the date this decision becomes final,

the agency shall issue a notice of processing and/or a new FAD , with

appeal rights to the Commission, regarding allegation (3).

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 (R0993)

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. 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 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 (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:

11/05/1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations