Daniel J. Berthelot, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 20, 1999
01983687 (E.E.O.C. Oct. 20, 1999)

01983687

10-20-1999

Daniel J. Berthelot, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Daniel J. Berthelot v. United States Postal Service

01983687

October 20, 1999

Daniel J. Berthelot, ) Appeal Nos. 01983687 01992135

Appellant, ) 01983688 01992136

) 01990217 01992137

) 01991107 01992139

) 01991108 01992140

v. ) 01991109 01992557

) 01991699 01992644

) 01991840 01992819

) 01991933

) Agency Nos. 4-G-770-0256-98 4-G-770-0045-99

William J. Henderson, ) 4-G-770-0255-98 4-G-770-0044-99

Postmaster General, ) 4-G-770-0696-98 4-G-770-0784-98

United States Postal ) 4-G-770-0735-98 4-G-770-0748-98

Service, ) 4-G-770-0734-98 4-G-770-0747-98

Agency. ) 4-G-770-0746-98 4-G-770-0115-99

) 4-G-770-0749-98 4-G-770-0043-99

) 4-G-770-0898-98 4-G-770-0100-99

_________________________) 4-G-770-0740-98

DECISION

INTRODUCTION

Appellant filed seventeen (17) appeals from final agency decisions

involving similar issues, reasons for dismissal, and arguments from

both parties. Therefore, the Commission will address the seventeen

(17) appeals herein, pursuant to its discretion to consolidate multiple

complaints of discrimination from the same appellant for joint processing.

See 29 C.F.R. �1614.606. Appellant, through his representative,

timely appealed the complaints presently at issue, and accordingly,

they are accepted pursuant to EEOC Order No. 960, as amended.

BACKGROUND

Appellant alleged that he was discriminated against on various bases,

including physical disability, mental disability, age, and in reprisal for

prior EEO activity in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. �2000e et seq., �501 of the Rehabilitation Act

of 1973, as amended, 29 U.S.C. �791 et seq., and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.

In eight (8) complaints, appellant claims that he was denied the physical

accompaniment of his representative, in four (4) complaints, appellant

alleges that his OWCP complaints were improperly processed, and in three

(3) complaints, appellant contends that the agency called him at home.

In fourteen (14) cases, the agency dismissed all or part of the complaint

for failure to state a claim. Three (3) complaints were dismissed for

stating the same claim raised in a prior EEO complaint, and 1 complaint

was dismissed for failing to timely file a formal complaint. The agency

also accepted issues for investigation in 3 of appellant's complaints.

EEOC Appeal No. 01983687 (Complaint 1)

Appellant alleges that he was discriminated against on the bases of

physical disability (lumbar strain and carpel tunnel syndrome) and in

reprisal for prior EEO activity, when on or about December 2, 1997,

appellant's supervisor told him that appellant was responsible for

mis-deliveries on his route, even when appellant was not on the route.

The agency dismissed appellant's complaint pursuant to EEOC Regulation

29 C.F.R. �1614.107(a), for failure to state a claim. Specifically,

the agency found that appellant suffered no concrete harm from the

supervisor's isolated remark. On appeal, appellant contends, through

his representative, that being made responsible for the mistakes of

others involves concrete action, and creates a hostile work environment.

EEOC Appeal No. 01983688 (Complaint 2)

Appellant alleged discrimination on the bases of physical disability

(back injury), age (52), and in reprisal for prior EEO activity when on

November 20, 1997, the Officer-in-Charge threatened to work 150 - 200%

to remove appellant from the agency.

The agency dismissed appellant's complaint for failure to state a claim.

Specifically, the agency found that appellant sustained no concrete

harm from the agency official's isolated remark. On appeal, appellant

argues that the incident alleged is not isolated, but rather is part of

a pattern of harassment that includes ongoing threats of removal.

EEOC Appeal No. 01990217 (Complaint 3)

Appellant alleged discrimination on the bases of physical disability

(lumbar strain and carpel tunnel syndrome), mental disability (stress),

and in reprisal for prior EEO activity when on July 10, 1998, appellant

discovered that his military papers, Form DD-214, Current Form 50,

and other papers were taken out of appellant's personnel file.

The agency dismissed appellant's complaint for failure to state a

claim. Specifically, the agency found that appellant did not allege

any detrimental consequence from the removal of the papers. On appeal,

appellant argues that the allegation is part of a pattern of harassment,

and that appellant suffered from the agency's invasion of his privacy.

EEOC Appeal No. 01991107 (Complaint 4)

Appellant alleged discrimination on the bases of physical disability,

mental disability, and in reprisal for prior EEO activity when on July

6, 1998, appellant was denied the right to physically access his EEO

representative.

The agency dismissed appellant's complaint for failure to state a

claim. Specifically, the agency found that appellant was not barred

from contacting his representative, but was not allowed to meet with

the representative face-to-face while on duty. On appeal, appellant

contends that he was forced to undergo counseling over the phone, which

denied appellant access to the EEO process.

EEOC Appeal No. 01991108 (Complaint 5)

Appellant alleged that he was discriminated against on the bases of

physical disability, mental disability, and in reprisal for prior EEO

activity when on July 3, 1998, management denied appellant the right to

physically access his EEO representative.

The agency dismissed appellant's complaint for failure to state a claim.

Both parties articulated the same reasoning raised in Complaint 4.

EEOC Appeal No. 01991109 (Complaint 6)

Appellant alleged that he was discriminated against on the bases of

physical disability, mental disability, and in reprisal for prior EEO

activity when: (1) on June 12, 1998, appellant was denied official EEO

time, and as a result, the time was charged as Leave-Without-Pay (LWOP);

and (2) on June 12, 1998, appellant's complaint was delayed, and appellant

was denied the physical accompaniment of his EEO representative.

The agency accepted allegation (1), but dismissed allegation (2) for

failure to state a claim. Specifically, the agency found that appellant

failed to articulate how the delay or lack of physical presence of

appellant's EEO representative rendered appellant aggrieved. In response,

appellant asserts that access was withheld to his EEO representative as

punishment for appellant's prior EEO activity. Appellant contends that

the agency's actions deny him access to the EEO process.

EEOC Appeal No. 01991699 (Complaint 7)

Appellant alleged that he was discriminated against on the bases of

physical disability and in reprisal for prior EEO activity when on

July 7, 1998, after calling about EEO complaints and being denied the

physical accompaniment of appellant's EEO representative by appellant's

supervisor, the Senior EEO Complaint Processing Specialist called to

arrange a lunch with the supervisor.

The agency dismissed appellant's complaint for failure to state a claim.

Specifically, the agency found that appellant suffered no harm from

the EEO Processing Specialist and appellant's supervisor having lunch

together. In response, appellant contends that his complaint concerns

the denial of appellant's request for the physical accompaniment of his

EEO representative. Appellant also argues that the Senior EEO Complaint

Processing Specialist and appellant's supervisor met in order to devise

a method to discourage appellant's EEO activity.

EEOC Appeal No. 01991840 (Complaint 8)

Appellant alleged that he was discriminated against on the bases of

physical disability, mental disability, and in reprisal for prior EEO

activity when on August 21, 1998: (1) appellant was instructed to work

overtime despite his restrictions, and (2) appellant's supervisor

threatened to send appellant elsewhere if appellant did not sign a

limited duty agreement.

The agency accepted allegation (1) for investigation, but dismissed

allegation (2) for failure to state a claim. Specifically, the agency

found that the threat did not affect a term, condition, or privilege

of employment, and appellant provided no evidence of concrete harm.

In response, appellant argues that the threat was part of a larger pattern

of harassment, and that appellant was harmed when he was forced to sign,

and abide by, a limited duty agreement.

EEOC Appeal No. 01991933 (Complaint 9)

Appellant alleged that he was discriminated against on the bases of

physical disability and in reprisal for prior EEO activity when on

July 8, 1998, appellant's supervisor denied appellant the physical

accompaniment of his EEO representative.

The agency dismissed appellant's allegation pursuant to EEOC Regulation

29 C.F.R. �1614.107(a), for stating the same claim raised in Complaint 5.

In response, appellant contends that although the complaints concern the

same issue, they involve different incidents that occurred on different

days.

EEOC Appeal No. 01992135 (Complaint 10)

Appellant alleged that he was discriminated against on the bases of

physical disability, mental disability, and in reprisal for prior EEO

activity when on August 27, 1998, appellant was called at home and

directed to contact the Office of Workers' Compensation Program (OWCP).

The agency dismissed appellant's complaint for stating the same claim

raised in a prior complaint, Agency Number 4-G-770-0002-99. The record

includes appellant's formal complaint for Agency Number 4-G-770-0005-99,

dated October 26, 1998, in which appellant alleges, inter alia, that on

August 27, 1998, appellant was called at home and instructed to call OWCP.

The record also contains a letter dated January 11, 1999, informing

appellant that Agency Numbers 4-G-770-0002-99 and 4-G-770-0005-99 were

being consolidated as Agency Number 4-G-770-0002-99.

On appeal, appellant states that he has no objection to the merger of

Agency Numbers 4-G-770-0002-99, 4-G-770-0005-99, and 4-G-770-0045-99.

EEOC Appeal No. 01992136 (Complaint 11)

Appellant alleged that he was discriminated against on the bases of

physical disability, mental disability, and in reprisal for prior EEO

activity when: (1) on September 17, 1998, appellant was instructed to

complete a Form CA-1 while off the clock, and was denied representation

or assistance in completing the form; and (2) the Postmaster threatened

to throw appellant out of the building.

The agency dismissed appellant's complaint for failure to state a claim.

Specifically, the agency found that allegation (1) was a collateral

attack to the OWCP process, and allegation (2) concerned an isolated

remark without any concrete harm. On appeal, appellant contends that the

allegations are part of a larger pattern of harassment, that allegation

(1) is an entitlement of appellant's employment, and that appellant

suffered a concrete harm when he required medical care for stress.

EEOC Appeal No. 01992137 (Complaint 12)

Appellant alleged that he was discriminated against on the bases of

physical disability and in reprisal for prior EEO activity when on July

14, 1998: (1) appellant became aware that management did not process

his PS Form CA-7 properly; and (2) appellant was denied the physical

accompaniment of his representative.

The agency accepted allegation (1), but dismissed allegation (2)

for failure to state a claim. Specifically, the agency found that

appellant was not denied contact with his representative, but merely

was denied an opportunity to speak with his representative face-to-face.

On appeal, appellant argues that the complicated preparation of his case

was hampered because appellant and his representative could not look

at the same documents at the same time, and spent most of their time

describing documents to each other over the phone. Appellant claims that

the lack of face-to-face contact with the representative contributed to

appellant's stress and medical conditions.

EEOC Appeal No. 01992139 (Complaint 13)

Appellant alleged that he was discriminated against on the bases of

physical disability, mental disability, and in reprisal for prior

EEO activity when on July 2, 1998, appellant was denied the physical

accompaniment of his EEO representative.

The agency dismissed appellant's complaint for stating the same claim

raised in Complaint 5. On appeal, appellant argues that the allegation

involves a different set of facts that occurred on a different date.

EEOC Appeal No. 01992140 (Complaint 14)

Appellant alleged that he was discriminated against on the bases of

physical disability, mental disability, and in reprisal for prior EEO

activity when on or about July 22, 1998, appellant's supervisor instructed

appellant when to take breaks.

The agency dismissed appellant's complaint pursuant to EEOC Regulation

29 C.F.R. �1614.107(b), for failure to timely file a formal complaint.

Specifically, the agency found that appellant received a Notice of Right

to File a Formal Complaint on August 27, 1998, but appellant did not file

a formal complaint until October 26, 1998. On appeal, appellant asserts

that he was injured from August 27, 1998 until December 5, 1998, which

delayed the filing of his formal complaint. Appellant notes that the

agency was aware of appellant's absence from work because of his injury.

EEOC Appeal No. 01992557 (Complaint 15)

Appellant alleged that he was discriminated against on the bases of

physical disability, mental disability, and in reprisal for prior EEO

activity when on October 21, 1998, appellant's supervisor urged another

employee to spy on appellant so that the employee could receive a monetary

award for reporting appellant for OWCP fraud.

The agency dismissed appellant's complaint for failure to state a claim.

Specifically, the agency found that appellant failed to allege any

evidence of concrete harm. On appeal, appellant argues that the

allegation is part of a larger pattern of harassment, which states a

claim in light of appellant's other allegations.

EEOC Appeal No. 01992644 (Complaint 16)

Appellant alleged that he was discriminated against on the bases of

physical disability, mental disability, and in reprisal for prior EEO

activity when appellant requested a CA-7 and CA-20 form several times,

and was told to come to work to get them.

The agency dismissed appellant's allegation for failure to state a claim.

Specifically, the agency found that the forms appellant requested were

used to report job-related injuries, and that appellant was not harmed by

being asked to come into work in order to pick-up copies of the forms.

On appeal, appellant argues that he was denied access to the OWCP by

the agency's action, thus affecting a term, condition, or privilege

of employment.

EEOC Appeal No. 01992819 (Complaint 17)

Appellant alleged that he was discriminated against on the bases of

physical disability, mental disability, and in reprisal for prior EEO

activity when on October 21, 1998, the Officer-in-Charge (OIC) called

appellant at home to tell appellant that he could not vote in a NALC

election in which appellant was a candidate.

The agency dismissed appellant's complaint for failure to state a claim,

finding that appellant suffered no harm, and that the complaint did not

involve ongoing and continuous harassment. On appeal, appellant contends

that the allegation is part of larger pattern of harassment and is linked

to concrete harm discussed in other complaints. Appellant argues that all

of his complaints involved the same supervisor at the same work site.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint or a portion of a complaint that states the same claim

that is pending before or has been decided by the agency or Commission. It

has long been established that "identical" does not mean "similar."

The Commission has consistently held that in order for a complaint to be

dismissed as identical, the elements of the complaint must be identical to

the elements of the prior complaint in time, place, incident, and parties.

See Jackson v. United States Postal Service, EEOC Appeal No. 01955890

(Apr. 5, 1996) recons. granted EEOC Request No. 05960524 (Apr. 24, 1997)

(affirming decision cited above, but reversing other allegations on

unrelated grounds).

Regarding Complaint 10, the agency presented evidence that appellant

raised the same allegation as was raised in a prior complaint, Agency

Number 4-G-770-0002-99. Accordingly, the agency's dismissal of Complaint

10 was proper.

EEOC Regulation 29 C.F.R. �1614.107(a) also provides, in relevant part,

that an agency shall dismiss a complaint, or portion thereof, that fails

to state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(a). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (Apr. 21, 1994).

The Commission has held that a collateral attack to the OWCP process

fails to state a claim. See Conley v. Department of the Navy, EEOC

Request No. 05970402 (Jan. 21, 1999); Agustin v. Department of Labor,

EEOC Request No. 05960127 (Dec. 19, 1996) (direct attack of manner in

which OWCP personnel processed an injury claim is a collateral attack).

An attack of the merits of an OWCP claim, or of the agency's action in

representing its interests in the OWCP forum, even by the submission

of allegedly false information, does not state a claim. See Pirozi

v. Department of the Navy, EEOC Request No. 05970146 (Oct. 2, 1998);

Ward v. United States Parcel Service, EEOC Request No. 05980036 (Mar. 19,

1998).

The Commission finds that Complaint 16, and allegation 1 of Complaint

11, allege a collateral attack to the OWCP process. The processing of

appellant's OWCP claim is beyond the purview of the Commission, regardless

of the agency's alleged pattern of harassment. Therefore, the agency's

dismissal of Complaints 11 (allegation (1)) and 16 was proper.

The Commission has held that an allegation which relates to the processing

of a previously filed complaint does not state an independent allegation

of employment discrimination.<1> See Kleinman v. United States

Postal Service, EEOC Appeal No. 05940579 (Aug. 31, 1994); Story v.

United States Postal Service, EEOC Appeal No. 01965883 (Mar. 2, 1997).

Further, the Commission has held that allegations regarding improper

counseling in a prior complaint fails to state a claim. See Klimek

v. United States Postal Service, EEOC Request No. 05970463 (Nov. 27,

1998) (holding that the agency has met its statutory duties by conducting

counseling by mail); Henry v. United States Postal Service, EEOC Appeal

No. 05960145 (Oct. 27, 1997); cf. Havan v. Department of the Treasury,

EEOC Request No. 05950606 (Aug. 8, 1996) (time limitations not tolled

because complainant only has access to a counselor via the telephone);

Calles v. Federal Deposit Insurance Corp., EEOC Appeal No. 01971928

(Apr. 3, 1998) (issues discussed with counselor over the phone are deemed

to have been raised during counseling).

Regarding Complaints 4, 5, 6 (allegation (2)), 7, 9, 12 (allegation

(2)), and 13, the Commission finds that appellant is alleging that his

complaints were improperly processed. Appellant is not alleging that

he was denied official time to contact his representative, or that he

was completely denied representation. To the contrary, appellant admits

that he was allowed to contact his representative over the phone if he

wished; however, appellant disputes the method of contact, i.e., that

he was not allowed to meet with his representative in person. Further,

appellant argued in Complaints 4 and 5 that his complaints were improperly

processed, because he was forced to conduct counseling over the phone.

Complaint 7 also involves appellant's concern over the social relationship

between the Senior EEO Complaint Processing Specialist, who has handled

the processing of appellant's complaints, and appellant's supervisor,

who is the responsible agency official in many of appellant's complaints.

The Commission finds that appellant again is raising matters that concern

the processing of his prior complaints, by alleging that the Senior

EEO Complaint Processing Specialist had a conflict of interest which

should have prohibited him from handling appellant's prior complaints.

See Phillips v. Department of the Air Force, EEOC Appeal No. 01973621

(Apr. 13, 1998) (finding that allegation concerning a conflict of interest

in agency's processing of prior complaints fails to state a claim).

Further, appellant has not alleged that there was a reporting relationship

between the two officials. See Sanchez-Baca v. Department of Energy, EEOC

Appeal No. 01974372 (Feb. 12, 1998) (conflict of interest exists when an

official reporting relationship exists between the allegedly responsible

official, and the official that processes appellant's complaint).

Accordingly, the Commission finds that appellant has failed to raise a

cognizable claim.<2>

Consequently, we find that the agency properly dismissed Complaints

4, 5, 6 (allegation (2)), 7, 9, 12 (allegation (2)), and 13 pursuant

to 29 C.F.R. �1614.107(a), since they involve allegations of improper

processing.<3>

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently

severe or pervasive to alter the conditions of the complainant's

employment. The Court explained that an "objectively hostile or abusive

work environment" is created when "a reasonable person would find [it]

hostile or abusive: and the complainant subjectively perceives it as

such." Harris, supra at 21-22. Thus, not all claims of harassment are

actionable. Where a complaint does not challenge an agency action or

inaction regarding a specific term, condition or privilege of employment,

a claim of harassment is actionable only if, allegedly, the harassment

to which the complainant has been subjected was sufficiently severe or

pervasive to alter the conditions of the complainant's employment.

A complaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the complainant cannot prove a set of facts

in support of the claim which would entitle the complainant to relief.

The trier of fact must consider all of the alleged harassing incidents

and remarks, and considering them together in the light most favorable to

the complainant, determine whether they are sufficient to state a claim.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (Feb. 27,

1997).

Regarding the remaining allegations dismissed for failure to state a

claim, i.e., Complaints 1, 2, 3, 8 (allegation (2)), 11 (allegation

(2)), 15, and 17, the Commission finds that appellant alleged a pattern

of harassment. Appellant consistently argued that these allegations

should be viewed in light of other similar statements. However, the

agency dismissed each allegation for involving an isolated incident

from which appellant suffered no concrete harm. Further, although

all of these complaints were pending at the same time, the agency never

sought to consolidate the complaints or determine whether the allegations

involved a pattern of harassment. Appellant's harassment allegations,

although made in separate complaints, involve at least seven different

incidents over the span of less than one year, involving repeated threats

of removal and other harassment from a few supervisory officials.

The Commission finds that the agency improperly dealt with each

allegation in a piecemeal manner, and therefore, allowed appellant's

claim of harassment to be fragmented among several pending complaints.

See Meaney v. Department of the Treasury, EEOC Request No. 05940169

(Sept. 29, 1994). (an agency should not ignore the "pattern aspect"

of a complainant's allegations where an analogous theme unites the

matters complained of); Cobb v. Department of the Treasury, EEOC Request

No. 05970077 (Feb. 27, 1997) (allegations in previous complaints used

to determine whether allegations in pending cases are part of a pattern

of harassment). Accordingly, the agency's dismissal of Complaints 1,

2, 3, 8 (allegation (2)), 11 (allegation (2)), 15, and 17 was improper.

Regarding the timeliness of Complaint 14, EEOC Regulation 29

C.F.R. �1614.106(b) requires the filing of a written complaint with an

appropriate agency official within fifteen (15) calendar days after

the date of receipt of the notice of the right to file a complaint

required by 29 C.F.R. �1614.105(d), (e) or (f). EEOC Regulation 29

C.F.R. �1614.107(b) provides that the agency shall dismiss a complaint

or a portion of a complaint that fails to comply with the applicable

time limits contained in ��1614.105, 1614.106, and 1614.204(c), unless

the agency extends the time limits in accordance with �1614.604(c).

Appellant does not dispute that the formal complaint was filed more than

15 calendar days after appellant received a Notice of Right to File

Formal Complaint. Appellant contends, rather, that the filing period

should be waived pursuant to 29 C.F.R. �1614.604(c), because

appellant was suffering from an injury.

When an appellant claims that a physical condition prevents him

from meeting a particular filing deadline, the Commission has held

that in order to justify an untimely filing, the appellant must be so

incapacitated by the condition as to render him physically unable to make

a timely filing. See Sohal v. United States Postal Service, EEOC Request

No. 05970461 (Apr. 2, 1997); Zelmer v. United States Postal Service,

EEOC Request No. 05890164 (Mar. 8, 1989). Appellant has not presented

any information from which the Commission could find that appellant was

unable to file a complaint. To the contrary, the Commission notes that

appellant filed his formal complaint on October 27, 1998, but claims to

have suffered from his incapacitating condition until December 5, 1998.

Therefore, the Commission finds that the agency's dismissal of Complaint

14 for failing to file a timely formal complaint was proper.

CONCLUSION

Accordingly, the agency's dismissal of Complaints 4, 5, 6 (allegation

(2)), 7, 9, 10, 11 (allegation 1), 12 (allegation (2)), 13, 14, and 16,

is AFFIRMED. However, the agency's dismissal of Complaints 1, 2, 3,

8 (allegation (2)), 11 (allegation (2)), 15, and 17 is REVERSED, and

these complaints are REMANDED for further processing as a consolidated

complaint.

ORDER

The agency is ORDERED to consolidate appellant's remanded complaints

into a single claim of hostile work environment harassment. Thereafter,

the agency shall process the remanded allegations in accordance with 29

C.F.R. �1614.108. The agency shall acknowledge to the appellant that

it has received and consolidated 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 and consolidation 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. �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 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. 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:

October 20, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1If a complainant is dissatisfied with the processing of his pending

complaint, he should be referred to the agency official responsible for

the quality of complaints processing. Agency officials should earnestly

attempt to resolve dissatisfaction with the complaints process as early

and expeditiously as possible. See EEO MD 110 (4-8).

2However, the Commission cautions the agency that it "must avoid

. . . conflicts of interest as well as the appearance of such conflicts."

See EEOC MD-110 at 1-1.

3Since we are affirming the agency's dismissal of complaints 9 and 13

on the grounds of failure to state a claim, we need not further address

the agency's cited grounds for dismissal, i.e., that these complaints

raise the same claim as a prior complaint.