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