01986690_01981116
12-19-2000
Al-Amin S. As'Salaam, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Al-Amin S. As'Salaam v. United States Postal Service
01986690, 01981116
December 19, 2000
.
Al-Amin S. As'Salaam,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01986690
01981116
Agency Nos. 4K-210-0080-98
1K-211-0107-97
DECISION
Complainant filed timely appeals with this Commission from an agency
decision dated August 13, 1998, and an agency decision dated October 3,
1997, dismissing his complaints of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. 2000e et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq.<1>
BACKGROUND
A. EEOC Appeal No. 01981116, Agency No. 1K-211-0107-97
Complainant initiated contact with an EEO Counselor on February 19, 1997,
with regard to Agency No. 1K-211-0107-97. On May 14, 1997, complainant
claimed that he was discriminated against on the bases of his race
(African-American), color (black), sex (male), disability (great toe,
both knees, hypertension, depression), and in reprisal for his previous
EEO activity under Title VII and the Rehabilitation Act when:
1. On October 11, 1996, a recommendation of removal was made and
concurred with.
2. On November 6, 1996, he was issued a Notice of Proposed Removal.
3. On February 4, 1997, the Notice of Proposed Removal was rescinded.
4. On February 8, 1997, he received an Absence from Duty Letter.
In its decision dated October 3, 1997, the agency dismissed claims 1 -
2 on the grounds that complainant failed to initiate contact with an EEO
Counselor within the 45-day limitation period. The agency dismissed
claim 3 on the grounds of failure to state a claim. The fourth
claim was accepted for investigation. Complainant filed an appeal
with the Commission, which was docketed as EEOC Appeal No. 01981116.
Complainant requested that a hearing be scheduled as to claim 4.
An EEOC Administrative Judge (AJ) interpreted claim 4 as a claim that
the agency constructively discharged complainant. The AJ stated that
this claim constituted a mixed case that could be appealed to the Merit
Systems Protection Board (MSPB). The AJ also stated that such cases are
not entitled to a hearing before an EEOC Administrative Judge. The AJ
dismissed the claim and ordered the agency to provide complainant with
appeal rights to the MSPB. The record shows that complainant filed an
appeal with the MSPB with regard to his claim of constructive discharge.
The MSPB dismissed complainant's appeal with prejudice.
B. EEOC Appeal No. 01986690, Agency No. 4K-210-0080-98
Complainant initiated contact with an EEO Counselor on March 2, 1998,
with regard to Agency No. 4K-210-0080-98. Complainant filed a formal
EEO complaint dated May 28, 1998. The agency defined the complaint as
complainant claiming that he was subjected to discrimination on the bases
of his race (African-American), color (black), sex (male), disability
(great right toe, both knees, hypertension, stress, depression),
and in reprisal for his previous EEO activity under Title VII and the
Rehabilitation Act when:
1. On or around January 26, 1998, and again on February 12, 1998,
complainant requested two EEO complaint forms, however only one complaint
form was mailed to him.
2. On or around January 26, 1998, complainant received a PS Form 50,
dated January 23, 1998, description �Retirement-Disability�.
3. Complainant was forced to retire because the agency failed to provide
him with a reasonable accommodation.
In its decision dated August 13, 1998, the agency dismissed claims 1 - 2
of the complaint on the grounds of failure to state a claim. The agency
dismissed claim 3 on the grounds that it states the same claim that is
pending before or has been decided by the agency. Complainant filed
an appeal with the Commission, which was docketed as EEOC Appeal
No. 01986690.
ANALYSIS AND FINDINGS
With regard to complainant's claim in Agency No. 4K-210-0080-98 that
he was only provided one complaint form rather than two complaint
forms, we find that such a claim does not state an independent claim of
discrimination. Indeed, it appears to involve a claim of dissatisfaction
with complaint processing, which is properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(8). Accordingly, the agency's dismissal of claim
(1) is AFFIRMED.
With respect to the three claims that were dismissed in Agency
No. 1K-211-0107-97 and claims 2 - 3 of Agency No. 4K-210-0080-98, we
find that the matters of the recommendation for removal, the notice of
proposed removal, and the lack of a reasonable accommodation represent
evidence related to complainant's constructive discharge claim. The
constructive discharge claim in the form of claim 4 of this complaint was
appealed to the MSPB. The MSPB issued an Initial Decision on April 17,
2000, dismissing complainant's appeal with prejudice. Since we find that
the other claims raised by complainant were inextricably intertwined with
the issue of his constructive discharge, which was appealed to the MSPB.
Consequently, we find that dismissal of these claims is proper pursuant
to 29 C.F.R. �1614.107(a)(4). Complainant may petition the Commission to
review the MSPB's decision pursuant to 29 C.F.R. �1614.303(a); however, we
will not address at this time whether such a petition would be timely.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(S0900)
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. 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 (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
December 19, 2000
__________________
Date
1In light of the similar nature of the two
complaints at issue, we have consolidated both appeals for review pursuant
to 29 C.F.R. � 1614.606.