01983462
03-26-1999
Franklin Nicoloudakis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Franklin Nicoloudakis v. United States Postal Service
01983462
March 26, 1999
Franklin Nicoloudakis, )
Appellant, )
)
v. ) Appeal No. 01983462
) Agency No. 1-A-086-0018-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency erred in its March 10, 1998 final
decision (FAD) dismissing appellant's formal EEO complaint on the basis
of untimely EEO counselor contact, pursuant to 29 C.F.R. �1614.107(b).
The record shows that Form 2564-A, Information for Precomplaint
Counseling, states that appellant sought EEO counseling on December 4,
1996, alleging that he had been discriminated against on the bases of
reprisal for prior EEO activity, physical disability (foot and back),
and sex (male) when from the Summer of 1996, through September 1996, he
was not provided with a reasonable amount of time in which to process
his EEO complaints. A review of Form 2564-A, however, also shows
that appellant stated "contact was made with [Senior EEO Complaints
Processing Specialist] via a written request for the precomplaint form
(2564-A) on September 21, 1996". Further, the record contains a letter
dated September 20, 1996,<1> in which appellant asked the Senior EEO
Complaints Processing Specialist to send him "a form 2564-A for another
precomplaint counseling".
Appellant subsequently filed a formal complaint of discrimination<2> which
was dismissed by the agency on the grounds of untimely EEO counselor
contact. The agency found that appellant contacted a counselor on
December 4, 1996. This appeal followed. In response to appellant's
appeal, the agency contends that the stamp on the September 20, 1996
letter "is a hand stamp that could be placed on a document by anyone
during their normal course of duties ... without proof of mailing,
the agency does not believe one should rely on a letter that was hand
stamped with no postage affixed to it".
The Commission has held that where there is an issue of timeliness,
the agency always bears the burden of obtaining sufficient information
to support a reasoned determination as to timeliness. Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).
Concerning appellant's complaint, the agency has not met its burden.
While appellant stated on Form 2564-A that he contacted the EEO office
by mail on September 21, 1996, and provides a copy of the letter in
question, the agency merely contends that anyone could have stamped
the letter without mailing it. This is not sufficient to contradict
appellant's claim that he in fact contacted the EEO office on September
21, 1996. Absent sufficient evidence to show that appellant contacted
the EEO counselor in an untimely manner, we find that the dismissal
of the complaint was improper. Accordingly, the Commission hereby
REVERSES the FAD's dismissal of appellant's complaint for untimely EEO
counselor contact. Appellant's complaint is hereby REMANDED for further
processing consistent with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
March 26, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The letter is stamped "Trenton, NJ GMF, Sep 21, 1996, USPS".
2 Appellant also included the basis of national origin (Greek) in his
formal complaint.