05990914_r
08-30-2002
Bobby R. Bolden, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bobby R. Bolden v. United States Postal Service
05990914
August 30, 2002
.
Bobby R. Bolden,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05990914
Appeal No. 01984248
Agency No. 4-G-752-0108-98
DENIAL OF REQUEST FOR RECONSIDERATION
The United States Postal Service (agency) timely initiated a request
to the Equal Employment Opportunity Commission (EEOC or Commission)
to reconsider the decision in Bobby R. Bolden v. United States Postal
Service, EEOC Appeal No. 01984248 (June 30, 1999). EEOC Regulations
provide that the Commission may, in its discretion, 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 the previous decision, the Commission found that the agency had
improperly dismissed the complaint on the grounds of untimely EEO
Counselor contact. The Commission noted that complainant wrote to
the postmaster, a couple of weeks after his termination, asking him to
reconsider the termination that complainant believed to be discriminatory.
Finding that complainant's contact with a management official regarding
the alleged discrimination was in effect a request for EEO counseling,
and that the postmaster failed to advise complainant regarding EEO
counseling, the Commission concluded that the agency's dismissal for
untimely EEO Counselor contact was improper.
In its request for reconsideration, the agency contends that in addition
to untimely EEO Counselor contact, the complaint was also dismissed
on the grounds that it was untimely filed. Specifically, the agency
argues that although complainant received the Notice of the Right to File
a Formal Complaint on February 3, 1998, he did not file his complaint
until March 20, 1998, beyond the fifteen-day time limitation. The agency
argues that the Commission failed to address this alternative ground in
the previous decision.
Regarding the issue of whether the complaint was timely filed, the
Commission notes that complainant argued on appeal that he was not given
the formal complaint form, and that he requested the form on February
3, 1998. Complainant contended that after leaving several messages
and trying numerous times to reach the EEO Counselor, he finally
spoke with the EEO Counselor, who told him that he had been given
the form. Complainant disagreed and insisted that the form be sent to
him. Complainant asserted that immediately after finally receiving the
form, and after the time period had expired, he completed it.
We note that the agency has not challenged the complainant's very specific
assertions that they failed to provide him with a formal complaint form.
The Commission finds that the agency cannot benefit from its own action,
namely, dismissing a complaint as untimely filed after failing to timely
provide the complaint with the necessary form.
After a review of the agency's request for reconsideration, 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. 01984248 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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 (R0900)
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
August 30, 2002
__________________
Date