01981733
12-21-1999
Ilene D. McCarter, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ilene D. McCarter, )
Complainant, )
)
v. ) Appeal No. 01981733
) Agency Nos. 4-H-370-1088-95
William J. Henderson, ) 4-H-370-0198-97
Postmaster General, ) Appeal No. 01993310
United States Postal Service, ) Agency No. 4-H-370-1088-95
Agency. )
)
____________________________________) (Consolidated)
DECISION
For the reasons that follow, the Commission sets aside the agency's
November 21, 1997 final decision (FAD-1), received by complainant
on December 1, 1997, under agency case number 4-H-370-0198-97, EEOC
Appeal No. 01981733, which final decision (i.e., FAD-1) rejected
complainant's September 20, 1997 objection to the agency's framing of
the issues in her undated EEO �formal complaint�<1> filed on August
12, 1997 (and hereinafter referred to as complainant's August 12,
1997 complaint).<2> The agency has provided no new contentions in its
response to complainant's December 22, 1997 appeal, by her non-attorney
representative, to persuade us to the contrary. In addition, the
Commission, in this decision, takes further action, with regard to
agency case number 4-H-370-1088-95, under EEOC Appeal No. 01981733 and
EEOC Appeal No. 01993310 also set forth below.
As to 4-H-370-1098-97
We find, from our review of the entire record, as well as the arguments
on appeal including those not expressly addressed herein, that the
agency has not properly defined complainant's complaint, which we find
to contain vague claims. Smith v. U.S. Postal Service, EEOC Request
No. 05921017 (April 15, 1993). We also find the agency has not met
its burden of providing a clear record with sufficient evidence to
support the FAD. Hines v. U.S. Postal Service, EEOC Appeal No. 01923566
(May 13, 1993); Henry v. U.S. Postal Service, EEOC Request No. 05940897
(May 18, 1995).
We find, in the present case, FAD-1 has improperly dismissed, de facto,
claims without identifying and addressing those allegations, providing
the legal grounds for dismissal, or referencing the particular facts
upon which those dismissals have been predicated. Smith, supra.
We also find, as indicated above, that complainant's �formal complaint�
in the present case was contained in an undated letter to a Senior
EEO Complaints Processing Specialist, apparently in connection with
complainant's employment at the agency's Processing and Distribution
Center, in Knoxville, Tennessee.<3> The Commission cannot distinguish
between �live� claims therein from background information intended to
support �live� claims. In a similar situation, the Commission remanded
the complaint back to the agency so that the complainant could meet
again with an EEO Counselor in order that an agreement could be reached
on the issues in complainant's complaint. Smith, supra. On remand, the
EEO Counselor, after meeting with complainant in the present case, must
issue a new report concerning the meeting(s) and defining the complaint.
Finally, with regard to this complaint and subsequent appeal, we note
complainant's assertion, by her non-attorney representative, in untimely
post-appeal correspondence dated September 8, 1998, that complainant is
not appealing the November 21, 1997 FAD. Instead, complainant asserts, in
pertinent part, that �[t]he purpose of...all the letters I have written
is to point out that not only is [complainant] a victim of continual
discrimination and reprisals, she has been denied the basic right to
have proper E.E.O. complaint processing procedures.�
Complainant is advised that such correspondence, raising, inter alia,
new issues in the aftermath of the FAD on appeal, can serve only
to obfuscate the issues in the present matter, which already has a
questionable and obscure procedural history. We find, in the present
case, again as indicated above, that complainant had objected to the
agency's defining the issues in her complaint, which objections were
subsequently rejected by the November 21, 1997 FAD. We also find that
complainant, as we also stated above, filed a timely appeal--which she
now, apparently for the first time, appears to disavow--from the FAD, on
December 22, 1997. On remand, complainant is free to accept the issues
defined by the November 21, 1997 FAD, which complainant specifically
and initially identified in her letter, with supporting documentation,
to the Commission, which correspondence was docketed as her appeal
of this matter. Indeed, we find, in this regard, that complainant's
representative expressly, by letter dated December 19, 1997, advised
the agency as follows, in relevant part: �I am sending you a copy of
[complainant's] appeal to the Equal Employment Opportunity Commission
along with supporting documents.� (Emphasis added.) Complainant's
representative also referred to �appeal� in a January 30, 1998 letter to
the Commission's Office of Federal Operations (OFO) in a letter dated
January 30, 1998. In a letter to OFO, dated July 2, 1998, referencing
the docket number in the present case (i.e., EEOC Appeal No. 01981733),
complainant's representative stated, in relevant part, �I...request the
status of this appeal.�
The parties are advised that the Commission has an obligation and
responsibility, as well as the authority, to safeguard the integrity of
the EEO process, �which is designed to protect innocent individuals
from discriminatory practices,� from abuse and misuse.<4> Fisher
v. Department of Defense, EEOC Request No. 05970326 (December 11, 1998);
Story v. U.S. Postal Service, EEOC Request No. 05970083 (May 22, 1998).
Cf. Sampson v. Department of Justice, EEOC Request No. 05960435 (August
13, 1998) (adverse inference drawn against agency, for agency's failure
to produce relevant documents). In addition, complainant is advised, in
the present case, �that allegations pertaining to complaints processing
must be raised and addressed within the context of the underlying
complaints.� Sessoms v. U.S. Postal Service, EEOC Request No. 01973440
(June 11, 1998)<5> (citing Sessoms v. U.S. Postal Service, EEOC Request
No. 05940509 (November 18, 1994)).
As to 4-H-370-1088-95
We next turn to agency case number 4-H-370-1088-95. We view the agency's
processing of this matter with great concern, finding that it borders
on the contumacious. Specifically, we find that complainant initiated
EEO counseling on November 30, 1994, according to the ECR. She filed
a formal EEO complaint, dated January 18, 1995. In her complaint,
complainant alleged certain continuing acts of prohibited discrimination,
as well as inadequate EEO counseling. By letter dated February 10, 1995,
the agency accepted the issues it had defined in complainant's complaint.
By letter dated August 12, 1995, complainant requested a hearing before
an EEOC administrative judge (AJ), and an AJ was subsequently assigned.
In a �Notice of Remand,� dated December 23, 1996, under EEOC Docket
Number 250-95-8240X, the AJ remanded this matter to the agency. In his
�Notice of Remand,� the AJ stated, in relevant part:
The above entitled and numbered case is hereby remanded to the Agency
for the following reasons:
[Complainant] was sent a letter (February 10, 1995 - Assignment
Letter), by the Agency...indicating the issues the Agency had accepted.
The letter also advised [complainant] to respond within seven (7) days
if she disagreed with the �defined issue(s),...' [Complainant] responded
timely (February 14, 1995) to the Agency..., advising that she did have
some objections.
[Complainant] raised a �like or related' issue in her response, indicating
that she was the victim of harassment and reprisal. [Complainant]
did not receive a response from the Agency.
The EEOC regulations require that [complainant] be counseled on all
issues. It would not be prudent to proceed to hearing only on those
issues on which [complainant] has already been counseled. Since these
matters are interconnected, this case is remanded for further processing.
When counseling has been completed, the case should be referred back to
this office.
While the agency case file transmitted to the Commission in this case
did not appear to contain the AJ's remand notice, nor, apparently, the
agency's response to that remand notice; both documents were supplied by
complainant. We find that, by letter dated January 10, 1997, the agency
responded to the AJ's �Notice of Remand,� as follows, in pertinent part:
All of the issues raised by [complainant] were addressed in the
acceptance letter [of February 10, 1995]. In [complainant's] letter of
February 14, 1995, she raised a concern about the way the case had been
investigated and the manner in which the Counselor/Investigator (C/I)
conducted her inquiries as well as the C/I's decision on the people
selected for interview. These are not new issues and if [complainant]
felt the investigative report was defective or lacking in some manner,
this should have been your decision to make.
Finally, [complainant] wanted to add reprisal and harassment as purviews.
I have enclosed for your perusal, a copy of [complainant's] request for
counseling, dated September 3, 1996, wherein she requested counseling
because of alleged retaliatory acts by the agency.... On September 6,
1996, the agency sent [complainant] a PS Form 2564-A (Information for
Precomplaint Counseling) by [certified mail]. [Complainant] signed for
the certified article on September 17, 1996, and did not return it to the
[agency].... Therefore, any claim of reprisal because of her prior EEO
activity was abandoned by [complainant].
Based on the above facts, we are returning the case to you for
continuation of the hearing.
While additional documents relevant to the above matter do not appear
to be contained in the agency case file transmitted to the Commission,
or provided by complainant, we find the agency's January 10, 1997 letter
to the AJ to be tantamount to a final decision (FAD), dismissing claims in
violation of Smith, supra, and, indeed, contrary to Commission precedent
and case law permitting the raising of bases of discrimination (such
as reprisal), �at any point in the administrative process.� Essenfeld
v. National Security Agency, EEOC Appeal No. 01961377 (December 12,
1997), citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 464 (5th
Cir. 1970).
We also find, in the present case, the agency did not provide complainant
with appeal rights to the Commission. Thus, we denominate the agency's
January 10, 1997 letter to the AJ as FAD-2, and accept complainant's
December 22, 1997 appeal of FAD-1 to be tantamount to a timely appeal
of FAD-2 as well.
Finally, we find that, during the pendency of complainant's appeal
docketed under EEOC Appeal No. 01981733, the agency, on February 25,
1999, issued another final decision (FAD-3) pertaining to complainant's
January 18, 1995 complaint under agency case number 4-H-370-1088-95. The
Commission finds that complainant, by her non-attorney representative,
filed a timely appeal from FAD-3 on March 17, 1999. The Commission
docketed that appeal under EEOC Appeal No. 01993310. As indicated
above, the Commission has consolidated both appeals. FAD-3 dismissed
complainant's January 18, 1995 complaint, for failure to accept a
certified offer of full relief. The Commission finds, however, that
FAD-3 is inconsistent with the Commission's new regulations, cited above,
which no longer provide for dismissal of a complaint on such grounds.
Having reviewed the pertinent records in their entirety, the arguments
on appeal, including those not expressly addressed herein, and for
the foregoing reasons, the Commission hereby REVERSES FAD-1 (November
21, 1997), FAD-2 (January 10, 1997), and FAD-3 (February 25, 1999).
Complainant's August 12, 1997, and January 18, 1995 complaints, under
agency case numbers 4-H-370-1098-97 and 4-H-370-1088-95, respectively,
are hereby REMANDED for further processing consistent with this decision
and applicable regulations. The parties are advised that this decision
is not a decision on the merits of appellant's complaints. The agency
shall comply with the Commission's ORDER set forth below.
ORDER
The agency is hereby ORDERED to take the following actions, with the
cooperation of complainant and her representative, where and when
necessary to effect the Commission's ORDER:
1. The agency shall schedule in writing a meeting between complainant
and an EEO Counselor so an agreement can be reached on the issues in
complainant's August 12, 1997 complaint, under agency case number
4-H-370-1098-97. After the meeting(s), the Counselor must issue a new
Counselor's report concerning the meeting(s) and defining the complaint.
Complainant shall not be required to refile her August 12, 1997
complaint. However, she shall be required to sign a copy of the complaint
and provide it to the EEO Counselor at their first meeting. Although
complainant shall be permitted to clarify her claims, she shall not be
permitted to raise new claims pertaining to her complaint.
2. Ensure that, in her August 12, 1997 complaint, complainant identifies
in detail the facts of each and every claim, and bases of discrimination,
with relevant dates of occurrence, and names and titles of persons who
allegedly discriminated against her, and relief requested, including
compensatory damages, if any. Complainant shall advise the agency as to
whether she is seeking compensatory damages in this matter, and shall be
permitted to provide objective evidence of compensatory damages and the
connection, if any, between the compensatory damages and the alleged
discrimination. Complainant shall also distinguish those claims she
intends to be �live� claims from those claims intended to be background
evidence in support of �live� claims.
3. Ensure that all abbreviations are spelled out, such as PSDS, and that
all agency terms of art are explained, where and when used, particularly
within the context of the present matter.
4. Ensure that complainant's position, at the time this matter arose,
is clearly and specifically identified, including the applicable unit,
branch, or division that employed complainant at the time this matter
arose, with relevant dates of employment. In addition, the agency
and complainant shall ensure that all relevant and necessary documents
pertaining to this case are produced and that they are complete, legible,
and identified.
5. Ensure that complainant's employee status with the agency at the time
this matter arose has been specifically and clearly identified.
6. If an agreement can be reached on all claims and bases of
discrimination in complainant's complaint, then the agency shall issue
to complainant a letter of acceptance. If agreement cannot be reached
on a definition of all the claims and bases in complainant's complaint,
then the agency shall issue a new final agency decision (FAD), with
appeal rights to the Commission, defining the complaint. Such a FAD must
explicitly define all the claims in the complaint, i.e., the agency shall
not dismiss claims, de facto, by failing to define or address claims.
7. If the agency intends to dismiss complainant's complaint in its
entirety, it must do so in a new final decision (FAD) with appeal
rights to the Commission, stating all legal grounds, facts and documents
relied on. The agency may not dismiss complainant's complaint in part.
If the agency does not intend to accept all of 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)).<6>
In this regard, 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 FAD pertaining to agency case number
4-H-370-1098-97, and complainant's August 12, 1997 complaint, with regard
to both definition of the claims and bases of alleged discrimination
and any dismissal of complainant's complaint.
8. The agency shall complete all the above actions, including the
issuance of the Counselor's report and FAD if there is disagreement as
to the issues in appellant's August 12, 1997 complaint, under agency
case number 4-H-370-1098-97, and/or if the agency dismisses appellant's
August 12, 1997 complaint, within ninety (90) calendar days of the date
the Commission's decision becomes final in this matter.
9. The agency shall also give due consideration to consolidating
complainant's August 12, 1997 complaint, under agency case number
4-H-370-0198-97, with her January 18, 1995 complaint, under agency case
number 4-H-370-1088-95. It appears that complainant had requested a
hearing on her August 12, 1997 complaint. It further appears that the
hearing number assigned to that complaint was 250-98-8070X. In this
regard, the agency's attention is directed to the Commission's revised
regulations at 64 Fed. Reg. 37,661 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.606).<7>
If there is no hearing pending, and complainant still desires to have
a hearing, as opposed to a final agency decision without a hearing,
she shall, with the agency's assistance, submit a written request to
the Commission in accordance with the Commission's revised regulations
set forth at 64 Fed. Reg. 37,657 (to be codified at and referred to
hereinafter as 29 C.F.R. � 1614.108(g)). The agency is advised that its
failure to comply with the Commission's ORDER may result in the drawing
of an adverse inference and finding of discrimination by the Commission,
in addition to other sanctions.
10. 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 FAD
issued pursuant to instructions (6) and (7) above must be sent to the
Compliance Officer as referenced below, under �Implementation of the
Commission's Decision.�
11. With regard to FAD-2 and FAD-3, and complainant's January 18, 1995
complaint under agency case number 4-H-370-1088-95, the agency shall
comply with the AJ's December 23, 1996 Notice of Remand, irrespective
of the fact that this matter may now be under the jurisdiction of a
different EEOC AJ, if any, unless the dispute regarding those issues has
been resolved or unless the present AJ, if any, chooses to modify the
prior AJ's Order subject to proper notice to the parties. In this regard,
the Commission advises the parties to engage in good faith negotiations
to attempt to resolve amicably all outstanding complaints by complainant
against the agency.
12. Given the time that has passed since complainant initially requested
her hearing in 1995, the parties shall reach an agreement on all the
claims and bases of alleged discrimination in complainant's case, with
the assistance of an EEO Counselor, who shall be assigned to meet with
complainant to define and clarify the issues and issue a new report of
counseling, within thirty (30) calendar days of the date this decision
becomes final. Complainant shall not be permitted to raise new claims
during this counseling. She may be permitted to provide evidence of
compensatory damages and their connection to the alleged discrimination,
if that is part of the relief complainant is requesting with regard to her
January 18, 1995 complaint, under agency case number 4-H-370-1088-95.
Complainant shall not be required to refile her January 18, 1995
complaint.
13. Thereafter, the agency shall issue complainant a letter of acceptance
defining her claims, if an agreement can be reached on the claims,
and incorporate those claims as part of complainant's pending hearing,
if any, under agency case number 4-H-370-1088-95, heretofore identified
as EEOC Hearing Number 250-95-8240X. If there is no hearing pending, and
complainant still seeks a hearing, as opposed to a final agency decision
without a hearing, the agency shall assist complainant in obtaining a
hearing in accordance with 29 C.F.R. � 1614.108(g).
14. In the event an agreement cannot be reached on complainant's claims
and/or bases of alleged discrimination, the agency shall issue a FAD,
with appeal rights to the Commission, defining the claims and/or bases of
alleged discrimination. If the agency intends to dismiss complainant's
January 18, 1995 complaint, under agency case number 4-H-370-1088-95,
it shall do so in the same FAD in which the agency has defined the
claims and bases of alleged discrimination in complainant's complaint.
The FAD shall also identify the legal grounds, facts, and documents
relied on. The agency shall provide all relevant documents in support
of or referenced in the FAD, and shall ensure that all documents are
complete, identified, and intelligible.
15. The FAD or letter of acceptance, referenced in instructions (12)
and (13), with regard to complainant's January 18, 1995 complaint, under
agency case number 4-H-370-1088-95, shall be issued within ninety (90)
calendar days from the date the Commission's decision becomes final
in this case. The agency is advised that failure to comply with the
Commission's ORDER may result in the Commission's drawing of an adverse
inference and a finding of discrimination, in addition to other sanctions.
16. A copy of the letter arranging for a meeting with the EEO Counselor,
and the letter of acceptance and/or FAD referenced in instructions (12)
and (13), must be sent to the Compliance Officer referenced immediately
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 (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 (R1199)
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:
December 21, 1999
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.
2We note that complainant's non-attorney representative signed the �formal
complaint,� in violation of 29 C.F.R. � 1614.106(c), which requires the
aggrieved person or his/her attorney to sign the complaint. On remand,
complainant shall sign her own complaint. She need not, however, re-file
the complaint. Smith v. U.S. Postal Service, EEOC Request No. 05921017
(April 15, 1993).
3According to the EEO Counselor's report (ECR), appellant was a PS-6,
PSDS Clerk. The ECR indicates that appellant initiated EEO counseling
in this matter on May 28, 1997.
4Our language in this decision should not be construed to be a
determination that either complainant or her representative has abused
or misused the EEO process.
5Request to Reconsider pending at EEOC Request No. 05980973.
629 C.F.R. � 1614.107(b) provides as follows:
Where the agency believes that some but not all of the claims in a
complaint should be dismissed for the reasons contained in...this
section, the agency shall notify the complainant in writing of its
determination, the rationale for that determination and that those claims
will not be investigated, and shall place a copy of the notice in the
investigative file. A determination under this paragraph is reviewable
by an administrative judge if a hearing is requested on the remainder
of the complaint, but is not appealable until final action is taken on
the remainder of the complaint.
729 C.F.R. � 1614.606 provides, in pertinent part, as follows:
Two or more complaints of discrimination filed by the same complainant
shall be consolidated by the agency for joint processing after appropriate
notification to complainant. When a complaint has been consolidated
with one or more earlier filed complaints, the agency shall complete its
investigation within the earlier of 180 days after the filing of the last
complaint or 360 days after the filing of the original complaint, except
that the complainant may request a hearing from an administrative judge
on the consolidated complaints any time after 180 days from the date of
the first filed complaint. Administrative judges or the Commission may,
in their discretion, consolidate two or more complaints of discrimination
filed by the same complainant.