01993100
05-11-2000
Gary Jones, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gary Jones, )
Complainant, )
)
v. ) Appeal No. 01993100
) Agency No.1-J-483-0006-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On March 5, 1999, the complainant filed a timely appeal of a February 5,
1999 final agency decision dismissing his complaint for failure to state
a claim.<1>
In its final decision, the agency defined the issues of the complainant's
complaint as whether the complainant was discriminated against on
the bases of sex (male) and in retaliation (prior EEO activity) when
on September 16, 1998, some employees stepped to one side when the
complainant walked by and he was watched by some female employees.
In his December 20, 1998 complaint, the complainant stated that he was
filing formal complaints in Agency Nos. 1-J-483-0001-99, 1-J-483-0093-98
and 1J-483-0006-99. Therein, the complainant alleged that he was issued a
suspension from July 23 to August 6, 1998, that other incidents deal with
officials maintaining a hostile work environment against him, that his
evidence goes from 1987 to 1998, and that management officials prevented
him from obtaining a clean record. The complainant also alleged that his
complaint was being processed improperly and expressed dissatisfaction
with EEO counseling.
In his Information for Precomplaint Counseling, the complainant alleged
that throughout the late 1980s and 1990s, the agency created situations
that resulted in fraudulent discipline. He also alleged that management
slandered his name by saying that he had the AIDS virus.
On appeal, the complainant asserts that he was displeased with the EEO
process and the EEO Counselor assigned to him and cited incidents and
examples of his dissatisfaction.
Upon review, the Commission finds that the claims of the present complaint
are unclear and imprecise. It is not clear what issues were specific
to Agency No. 1-J-483-0006-99 because the complainant also identified
Agency Nos. 1-J-483-0001-99, 1-J-483-0093-98 in the one formal complaint
he apparently filed for three agency numbers. The Commission has remanded
complaints where the complaint was not adequately defined. See Donnelly
v. Department of Energy, EEOC Request No. 05960623 (April 16, 1998);
Smith v. U.S. Postal Service, EEOC Request No. 05921017 (April 15, 1993).
In addition, it does not appear that the agency sought to clarify and
define the issues of the complaint. It also appears that the agency
may have also failed to address issues raised in the complaint.<2>
The Commission has repeatedly held that failure to address all of the
allegations in a complaint is tantamount to a dismissal of those matters.
See Kapp v. Department of the Navy, EEOC Request No. 05940662 (January
23, 1995). Even if the agency believes that an issue in the complainant's
complaint should be dismissed, it may not ignore or fail to address the
issue as part of the complaint. See Egington v. U.S. Postal Service,
EEOC Appeal No. 01961079 (December 23, 1996). The appropriate procedure
is for the agency to identify all of the issues raised in the complaint
and then address each issue. Even if, for example, the agency believes
that the complainant may be raising an issue that may have been the
subject of a previous complaint or that was previously decided by the
agency or by the Commission, the agency must identify and address each
issue in its final agency decision.<3> Because the complaint is not
clear and the final agency decision is deficient in defining the issues
of the present complaint and addressing them, the Commission will not
determine whether the agency's dismissal of the complaint for failure to
state a claim was proper, so as to avoid piecemeal adjudication of the
complainant's complaint. The agency is reminded that in defining the
complaint on remand, it should distinguish between live issues and what
is provided by the complainant as background information. Accordingly,
we will vacate the final agency decision so that the complaint may be
clarified and the issues properly defined.
The complainant is advised that his failure to cooperate with the agency
in defining and clarifying the issues of his complaint can result in a
dismissal of his complaint.
Finally, to the extent that the complainant has expressed dissatisfaction
with the EEO process and EEO counseling, the complainant should
be referred to the agency official responsible for the quality of
complaints processing. See Chapter 7, Section IV.D, EEO Management
Directive (MD-110). Those individuals should earnestly attempt to
resolve dissatisfaction with the complaints process. The agency official
responsible for the quality of complaints processing must add a record of
the complainant's concerns and any actions the agency took to resolve the
concerns to the complaint file maintained on the underlying complaint.
If no action is taken, the complaint file must contain an explanation
of the agency's reason for not taking any action.
Based on the foregoing, the final agency decision is VACATED and the
complaint is REMANDED to the agency for further processing consistent
with the Order below and applicable regulations.
ORDER
The agency is ORDERED to take the following actions:
1. Within thirty (30) calendar days from the date this decision
becomes final, the agency shall refer complainant to EEO counseling for
clarification and identification of the issue(s) in his December 20, 1998
formal EEO complaint. He will not be required to refile his December 20,
1998 complaint.
2. At the conclusion of counseling, the Counselor shall issue a
supplemental EEO Counselor's report satisfying the applicable requirements
of this Order.
3. If an agreement is reached on the issues in the complainant's
complaint, and the agency finds the complaint acceptable, the agency
shall issue a letter of acceptance to the complainant. If, however,
an agreement cannot be reached on a definition of the issues in
complainant's December 20, 1998 complaint, then the agency shall issue
a new final agency decision defining the complaint, with appeal rights
to the Commission. The agency shall not dismiss claims de facto, by
failing to define or address claims.
4. If the agency intends to dismiss the complainant's complaint in
its entirety, it must do so in a new final agency decision, with appeal
rights to the Commission, stating all legal grounds, facts, and documents
relied upon. The agency may not dismiss complainant's complaint in part.
If the agency does not intend to accept all of the complainant's claims
for investigation, the agency shall proceed in accordance with the
Commission's revised regulations set forth at 64 Fed. Reg. 37,656 (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.107(b)).
Moreover, the agency shall ensure that all relevant, as well as
referenced, documents are produced and made a part of the record in
this case. The agency shall issue but one final decision with regard to
both the definition of the claims and bases of alleged discrimination,
and any dismissal of the complainant's complaint.
5. The complainant is advised that his failure to cooperate with the
agency in defining and clarifying the issues of his complaint can result
in the dismissal of his complaint.
6. The agency shall complete all the above ordered actions, including
issuance of the final agency decision, within ninety (90) calendar days
of the date that this decision becomes final.
A copy of the agency's letter to the complainant arranging a meeting with
an EEO Counselor, and a copy of the acceptance letter and/or final agency
decision issued must be sent to the Compliance Officer as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant 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. �� 1614.407
and 1614.408. 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 complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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. 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:
May 11, 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 1On 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.
2In the Counselor's Report, the Counselor noted that during the initial
interview, the complainant was informed that many of his allegations
were beyond the date for timely EEO Counselor contact and that some of
the issues were addressed in previous and current cases. While the EEO
Counselor, among other things, is to provide information regarding the
EEO process and to inform the complainant about his or her rights and
responsibilities, it is not the role of the EEO Counselor to determine the
validity of an issue or determine whether the complainant will prevail
on an issue when the dispute involves an allegation of discrimination
that a complainant may raise. Conclusions such as whether EEO Counselor
contact is timely or whether an issue was raised in a previous complaint
are made after counseling has been provided and a formal complaint
of discrimination filed. See Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 3 and Appendix A
(November 9, 1999).
3Complainant filed an appeal in a prior complaint in Jones v. U.S. Postal
Service, EEOC Appeal No. 01980232 (September 11, 1998). A motion to
reconsider has been docketed as EEOC Request No. 05990071.