01992568
11-21-2000
David W. Sellers, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David W. Sellers, )
Complainant, )
)
v. ) Appeal No. 01992568
) Agency No. 4-E-840-0115-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's January 8, 1999 final decision
is proper pursuant to EEOC Regulations.<1> Complainant filed a formal
complaint alleging that he had been discriminated against on the bases
of sex, age, religion, national origin, and mental disability when: (1)
he was not selected for promotion to Postmaster, Kamas, UT, on June 23,
1997; (2) he was required to report for a fitness for duty exam on June
26, 1997; (3) he was taken out of his office after his recording equipment
was found and reviewed by the postal inspectors on May 20, 1997; (4) he
was prevented from applying to the Associate Supervisor Program because
of a restricted geographical consideration area on June 6, 1997; and,
(5) he was given a financial audit on December 27, 1996.
By final agency decision (FAD) dated December 2, 1997, the agency
dismissed claims (4) and (5). Claims (1), (2), and (3) were accepted
for investigation. Complainant did not appeal the dismissal of claims
(4) and (5).
On May 5, 1998, Complainant and the agency reached an agreement and
settled an appeal to the Merit Systems Protection Board (MSPB). In
said settlement agreement the parties agreed that Complainant would
withdraw two outstanding complaints of discrimination. Specifically,
it provided that Complainant would �withdraw and not further pursue the
issues of whether he was discriminated against when he was required
to report for a fitness for duty exam on June 26, 1997, and when he
was taken out of his office after recording equipment was found and
reviewed by the postal inspectors on May 20, 1997." On June 4, 1998,
Complainant filed a petition for review before the MSPB claiming that
the �settlement agreement was unlawful, involuntary and the result of
mutual mistake�. By order dated September 30, 1998, the MSPB denied
Complainant's petition for review.
By FAD dated January 8, 1999, the agency accepted claim (1) for
investigation and dismissed claims (2), and (3) on the basis of mootness.
The agency noted that claims (2) and (3) had been withdrawn by Complainant
pursuant to a settlement agreement. It is from the January 8, 1999 FAD
that Complainant now appeals.<2>
The record shows that in their settlement agreement before the MSPB,
Complainant and the agency agreed that Complainant would withdraw
two outstanding complaints of discrimination. Moreover, it was
specifically agreed that claims (2) and (3) would be withdrawn as part
of the settlement agreement. Based on the foregoing, we find that
claims (2) and (3) were properly dismissed pursuant to our Regulations.
Accordingly, the January 8, 1999 final agency decision is hereby AFFIRMED
for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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 (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:
November 21, 2000
DATE
Carlton
M.
Hadden,
Director
Office of Federal Operations
1 On 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 29 C.F.R. Part 1614, where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.
2 EEOC Regulation 29 C.F.R. � 1614.107(b) provides that where an agency
decides that some but not all of the claims in a complaint should be
dismissed, the agency shall notify the complainant of its determination;
however this determination is not appealable until final action is taken
on the remainder of the complaint. The Commission previously inquired
of the parties the status of the remainder of the complaint at issue.
Based on the responses, it appears that the remainder was withdrawn,
rendering those claims pending herein the only remaining viable matters
and ripe for review on appeal.