Michael L. Malone, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area) Agency.

Equal Employment Opportunity CommissionSep 26, 2000
05a00083 (E.E.O.C. Sep. 26, 2000)

05a00083

09-26-2000

Michael L. Malone, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area) Agency.


Michael L. Malone v. United States Postal Service

05A00083

September 26, 2000

.

Michael L. Malone,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southeast Area)

Agency.

Request No. 05A00083

Appeal No. 01987078

Agency No. 4-H-335-0005-97

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Michael

L. Malone v. United States Post Office, EEOC Appeal No. 01987078 (July

16, 1999).

By regulation, requests for reconsideration must be filed within

30 calendar days after the party receives our previous decision.<1>

29 C.F.R. � 1614.405(b). A document is timely if it is received or

postmarked before the expiration of the applicable filing period, or,

in the absence of a legible postmark, is received by mail within five

days of the expiration of the applicable filing period. 29 C.F.R. �

1614.604(b).

The previous decision was mailed to the complainant on July 16, 1999. The

decision informed the complainant of his right to request reconsideration,

the regulatory time limit to do so, and the EEOC address where the

request should be sent. A United States Postal Service return receipt

indicates that our previous decision was received by the complainant

on August 3, 1999. The complainant's request for reconsideration is

postmarked October 22, 1999, beyond the 30 calendar day limitation period.

The complainant did not submit any justification for extending the filing

period beyond 30 days.

Accordingly, the complainant's request for reconsideration is untimely

and is DENIED. The Commission's decision in EEOC Appeal No. 01987078

remains the Commission's final decision in this matter.<2>

ORDER

The agency is ORDERED to take the following actions:

a. The agency shall conduct a supplemental investigation to develop an

adequate factual record on complainant's breach allegations and shall

include all supporting documentation, including the gathering of any

evidence relevant to a determination of complainant's breach allegation,

including complainant's notice of breach.

b. The agency shall complete its supplemental investigation and issue

a new final agency decision within 30 (thirty) calendar days of the date

this decision becomes final, unless the matter is otherwise resolved. If

the agency again determines that it has not breached the settlement

agreement, the new final agency shall address each allegation of breach,

clearly identify the evidence relied upon to support its findings and

provide appropriate legal analysis. All documents relied upon in the

new final agency decision shall be clearly identified and made a part

of the agency record.

A copy of the results of the supplemental investigation, including all

supporting documentation, and a new final agency decision must be sent

to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0800)

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)(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 29 C.F.R. � 1614.409.

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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

September 26, 2000

Date

1On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 The Commission notes that our previous decision vacated the agency's

final decision which found no breach of settlement. We remanded the

matter to the agency for supplementation of the record. The complainant's

request to reconsider is accordingly not clear. To the extent that the

complainant is dissatisfied with the agency's processing of his complaint,

he must first direct his concerns to the agency official responsible for

complaint processing. The complainant is reminded that the counseling

and investigation of discrimination complaints in the Federal service

is primarily an agency function and responsibility.