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.