01991684
07-06-2000
Tommy G. Doherty, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Tommy G. Doherty, )
Complainant, )
)
v. ) Appeal No. 01991684
) Agency No. 4-G-752-0519-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Based on a review of the record, we find that the agency improperly
dismissed complainant's complaint, pursuant to EEOC Regulation 64
Fed. Reg. 37,656 (1999)(to be codified and hereinafter referred to as
29 C.F.R. � 1614.107(a)(2)), for untimely EEO Counselor contact.<1>
The final agency decision (FAD) had defined the complaint as claiming
that, for a prohibited reason, complainant was disciplined with regard
to a March 1996 incident (the late delivery of express mails), while a
coworker who had committed a similar infraction on August 4, 1998, was
not disciplined. The FAD determined that complainant's August 14, 1998
EEO contact was beyond the applicable time limitation of 45 days. See 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as EEOC Regulation 29 C.F.R. � 1614.105(a)(1)).
On appeal, complainant contends that the relevant date of the alleged
discriminatory incident was May 1998, and not March 1996, while the
date of the named comparative's incident was August 4, 1998. The agency
raised no new contentions in response to complainant's appeal.
We find that the agency has failed to provide sufficient evidence in
support of the FAD. See Henry v. United States Postal Service, EEOC
Request No. 05940897 (May 18, 1995). In particular, we find the agency
has failed to meet its burden of providing sufficient evidence to support
its timeliness determination. See Guy, Jr. v. Department of Energy,
EEOC Request No. 05930703 (January 4, 1994).
In addition, we find that the EEO Counselor's report (ECR) cites March
1996, as the date complainant was allegedly disciplined. However, the ECR
also notes that the named facility's Postmaster �stated the complainant
in March or May 1998, did create a failure by not delivering a timely
received expressed mail in the specified time limit.�
Accordingly, the Commission hereby VACATES the FAD and REMANDS
complainant's complaint for further processing consistent with the
Commission's decision and applicable regulations. The parties are advised
that this decision is not a decision on the merits of complainant's
complaint. The agency shall comply with the Commission's ORDER below.
ORDER
The agency is hereby Ordered to take the following actions, with
complainant's cooperation and that of his representative where necessary
to effectuate this Order:
(1) The agency shall conduct a supplemental investigation pertaining
to complainant's claim that the relevant actions in the present matter
occurred in May 1998, as to complainant, and August 4, 1998, as to the
named comparative.
(2) The supplemental investigation shall consist of obtaining evidence
regarding the accuracy of those dates and, with regard to complainant's
incident, the particular date in May 1998 when complainant claims he
was disciplined.
(3) In addition, the supplemental investigation shall include a
statement, under oath or affirmation, from complainant, as to when he
first suspected that he had been discriminated against and the reason(s)
why he contacted an EEO Counselor on August 14, 1998, in the event the
agency again dismisses complainant's complaint on timeliness grounds.
(4) Thereafter, the agency shall issue a report of supplemental
investigation and a letter to complainant and his representative accepting
his complaint for investigation in connection with the 1998 incidents
claimed in this matter; or issue a new final decision to complainant
and his representative dismissing complainant's complaint. In this
regard, the agency shall request, and complainant's representative shall
provide, a letter stating that the representative is in fact representing
complainant in the present matter.
(5) A new final agency decision of dismissal shall identify the claims
dismissed, the legal grounds for dismissal, and the relevant factual
evidence.
(6) A new final agency decision shall also include appeal rights to
the Commission and shall identify and provide complainant and his
representative with all relevant documents.
(7) All Ordered actions, including the report of supplemental
investigation, and the issuance of a letter of acceptance or final agency
decision, shall be completed within sixty (60) calendar days of the date
the Commission's decision becomes final in this matter. Copies of all
relevant documents, including the report of supplemental investigation,
letter of acceptance, or final agency decision shall be submitted to
the Commission's Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
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:
July 6, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.