David W. Sellers, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 21, 2000
01992568 (E.E.O.C. Nov. 21, 2000)

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.