05a50225
03-17-2006
Robert E. Slack, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert E. Slack, Jr. v. United States Postal Service
05A50225
03-17-06
.
Robert E. Slack, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A50225
Appeal No. 01A43658
Agency No. 1K-201-0021-04
DENIAL OF REQUEST FOR RECONSIDERATION
On November 26, 2004, the United States Postal Service (agency) timely
initiated a request to the Equal Employment Opportunity Commission
(the Commission) or EEOC to reconsider the decision in Robert Slack,
Jr. v. United States Postal Service, EEOC Appeal No. 01A43658 (March
15, 2006). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In its previous decision, the Commission modified the agency's dismissal
of the captioned complaint dated April 8, 2004, wherein complainant
claimed discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and in
reprisal for prior EEO activity. Specifically, complainant's complaint
was comprised of the following three claims:
on or about December 23, 2003, [complainant] was issued a Notice of
Suspension [for] seven days;
in March 2000, [a named supervisor] said [complainant was] too old; and
from 2000 to May 2003, [complainant] was written up twenty times for
every conceivable reason.
The agency dismissed claim (1) for failure to state a claim.
Specifically, the agency stated that claim (1) referred to an arbitration
decision in which complainant received a 7-day suspension as a result of
pursuing the claim through the agency's negotiated grievance procedure.
The agency found, therefore, that claim (1) constituted a collateral
attack on the arbitration decision. The agency dismissed claims (2)
and (3) on the grounds of untimely EEO Counselor contact. The agency
found that complainant's April 9, 2004 EEO Counselor contact regarding
events which occurred in March 2000 and May 2003 was untimely.
In our previous decision, the Commission determined that the agency
improperly dismissed claim (1) for failure to state a claim. The
Commission indicated that complainant was issued a Notice of Suspension
for fourteen days on May 27, 2003. In reaching its decision to reverse
the agency's dismissal of claim (1), the Commission noted that the record
contained a copy of an undated letter from complainant to the agency.
Therein, complainant stated �I [wish] to continue my quest to [expunge]
my record of the [fourteen] day suspension, I was given in response to
a charge for being off my assignment and [asleep] in the parking [lot]
at this facility.� The Commission concluded, therefore, that claim
(1) was not a collateral attack on the arbitration award and stated a
cognizable claim of employment discrimination. The Commission affirmed
the agency's dismissal of claims (2) and (3) as untimely.
In its request for reconsideration, the agency fails to offer any evidence
that the Commission's finding that claim (1) states a claim, involves
an erroneous interpretation of law. Rather, the agency accepts the
Commission's finding that claim (1) of the captioned complaint refers to
the Notice of Suspension for fourteen days issued to complainant on May
27, 2003 and, therefore, states a claim of employment discrimination.
The agency attempts in its is request for reconsideration to raise an
alternate grounds of dismissal for claim (1). Specifically, the agency
contends that claim (1) should be dismissed for failure to timely contact
an EEO Counselor. The Commission finds, however, that because it failed
to raise the matter in the record below, the agency has effectively waived
untimeliness as a dismissal basis concerning claim (1), and cannot now
raise it in the instant request.
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. � 1614.405(b), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 01A43658 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing 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
____03-17-06______________
Date
Appellate Review Program Companion Case Checklist
COMPLAINANT
AGENCY
Appeal/Request/Petition No.
Robert E. Slack, Jr.
United States Postal Service
05A50225
OPEN
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
None
CLOSED
CASES (#)
ORADS
STATUS
RELATED
(YES/NO)
ACTIONS
TAKEN
05A00676
2x
01A43658
2x
Yes
Underlying 01
Sabrina R. Sinclair 3/15/06
______________________ _______________
ATTORNEY DATE