01977086
03-02-1999
Walter J. Bailey, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Walter J. Bailey, Jr. v. United States Postal Service
01977086
March 2, 1999
Walter J. Bailey, Jr., )
Appellant, )
)
v. ) Appeal No. 01977086
) Agency No. 1D-297-0009-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated September 12, 1997, which the agency issued pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a) and (b). The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision identified 5 allegations raised by the
appellant's July 30, 1997 complaint. The decision dismissed allegation
3 for untimely EEO counselor contact and the remaining allegations for
failure to state a claim.
On appeal, the appellant contends, among other things, that no one
informed him of his right to file an EEO complaint in 1995.
After a review of the record, the Commission finds that allegations
1 and 2 fail to state a claim of employment discrimination under 29
C.F.R. Part 1614 because they involve matters arising under the Collective
Bargaining Agreement. A remedy for the agency's alleged wrongdoing under
the terms of the Collective Bargaining Agreement must be sought under the
terms of that Agreement and may not be obtained from the EEO process.
However, evidence pertaining to allegation 2 may be introduced during
the investigation of allegation 4.
The Commission finds that allegation 5 also fails to state a claim of
employment discrimination. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996) (a supervisor's remarks
on several occasions, unaccompanied by any concrete action, were not
sufficient to state a claim of employment discrimination).
The Commission finds that the agency erred when it dismissed allegation
4 on the ground that the appellant was not on the register for the level
5 position. The Commission repeatedly has reversed agencies' dismissals
for failure to state a claim where the agency based the dismissal
on its view of the ultimate merit of the complaint allegations. See,
e.g., Franz v. Treasury, EEOC Request No. 05950734 (April 29, 1996)
(agency's argument that the complainant was not disparately treated went
to the merit of his claim); Ernst v. Treasury, EEOC Request No. 05950131
(March 7, 1996) (the agency's argument that the denied detail was to a
lower-grade position with fewer responsibilities and less opportunities
for promotion went to the merits of the complaint); Hagan v. Department
of Veterans Affairs, EEOC Request No. 05920709 (January 7, 1993) (agency
wrongfully dismissed allegation of disparate treatment in the payment
of licensing fees based on the ground that the agency could not pay an
employee's licensing fees); Cann v. United States Postal Service, EEOC
Request No. 05920861 (December 31, 1992) (agency wrongfully dismissed
allegation that the agency failed to upgrade an employee to full-time
regular status on the ground that there were no full time positions
available to him under the terms of the collective bargaining agreement);
and Ferns v. Department of the Army, EEOC Request No. 05920597 (September
10, 1992) (agency's argument that the complainant was ineligible for
position goes to the merits of the complaint).
As to the agency's dismissal of allegation 3 (failed rating on a level 9
maintenance test in 1995), the Commission finds insufficient evidence in
the record to determine whether the appellant had actual or constructive
knowledge of the 45-day period for EEO counselor contact. Without such
evidence, the Commission cannot determine whether or not the 45-day time
limitation for EEO counselor contact should be extended pursuant to 29
C.F.R. 1614.105(a)(2). Accordingly, the Commission vacates the agency's
dismissal of allegation 3 to permit an investigation on the timeliness
question.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegations 1, 2 and 5; VACATES the agency's dismissal of
allegation 3; REVERSES the agency's dismissal of allegation 4; and REMANDS
allegations 3 and 4 to the agency for processing as ORDERED below.
ORDER
The agency is ORDERED to investigate and place in the record all
relevant evidence demonstrating when the appellant first had actual
or constructive knowledge of the 45-day time limit for EEO counselor
contact. This evidence shall include an affidavit from the appellant.
If appropriate, the agency may dismiss allegation 3 for untimely EEO
counselor contact.
The agency is ORDERED to process the remanded allegation (4) in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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� (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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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. If you
file a request to reconsider and also file a civil action, 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:
Mar 2, 1999
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations