01991276
01-18-2000
David A. Ortega, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David A. Ortega, )
Complainant, )
)
v. ) Appeal No. 01991276
) Agency No. 4G-7600333-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 25, 1998, complainant filed a timely appeal with this
Commission from a final agency decision issued on October 28, 1998,
pertaining to his complaint 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.<1> The Commission accepts complainant's appeal
in accordance with EEOC No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
instant complaint for failure to state a claim.
BACKGROUND
The record reflects that on August 28, 1998, complainant initiated
contact with an EEO Counselor. During the counseling period, complainant
claimed to have been discriminated against when on August 10, 1998,
the EEO Counselor assigned to investigate his prior complaint, advised
management not to provide complainant with the opportunity to act or
train in a supervisory capacity.
Unable to resolve this matter informally, complainant filed a formal
complaint on September 24, 1998. The formal complaint claimed that
complainant was the victim of unlawful employment discrimination on the
bases of reprisal for engaging in prior EEO activity. The complaint was
comprised of the matters for which complainant underwent EEO counseling,
discussed above.
On October 28, 1998, the agency issued a final decision dismissing the
instant complaint for failure to state a claim. The agency found that the
complaint involved a claim of dissatisfaction with the EEO process and
should have been properly raised with the agency official responsible
for the quality of complaint processing pursuant to the MD-110.
Specifically, the agency noted that the statements at issue were made
during resolution attempts on complainant's prior complaint. Therefore,
the agency dismissed the complaint for failure to state a claim.
On appeal, neither complainant nor the agency raises any new arguments.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37644, 37656 (1999) (to be codified as 29
C.F.R. �1614.107(a)(8)) provides that the agency shall dismiss an
entire complaint that alleges dissatisfaction with the processing of a
previously filed complaint (spin-off complaint). In the instant case,
complainant's claim involves complainant's dissatisfaction with the
handling of a previous EEO complaint. Therefore, under the Commission's
regulations, the agency is required to dismiss complainant's claims of
improper processing. When claims of improper processing are raised, the
complainant should be referred to the agency official responsible for
the quality of complaints processing, and the agency should earnestly
attempt to resolve any dissatisfaction with the complaints process as
early and expeditiously as possible. EEOC-MD 110 (5-25), as revised,
November 9, 1999. Complainant is therefore advised to contact an official
in the agency's EEO office, if he believes that any complaint has been
improperly processed.
Accordingly, the agency's final decision is AFFIRMED for the reasons
set forth above.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
January 18, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.