James Elder, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 6, 2000
01986730 (E.E.O.C. Apr. 6, 2000)

01986730

04-06-2000

James Elder, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


James Elder v. United States Postal Service

01986730

April 6, 2000

James Elder, )

Complainant, )

)

v. ) Appeal No. 01986730

William J. Henderson, ) Agency No. 4F-900-0121-98

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On September 14, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) dated August 13, 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> Because the agency failed to submit a

copy of the certified receipt, or any evidence, indicating the date

complainant received the final agency decision, the Commission will

exercise its discretion and accept complainant's appeal as timely.

See 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified as 29 C.F.R. �

1614.402(a)). In his complaint, complainant alleged that he was subjected

to discrimination on the basis race (black) when:

On March 21, 1975, complainant was allegedly constructively discharged

when he was forced to resign from his position and when on April 26,

1973, management allegedly failed to accommodate his handicapping

condition.

The agency dismissed complainant's complaint pursuant to Volume 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.107(a)(3)), on the basis that a civil action was

pending in the United States District Court in which complainant was

a party.

The record reveals that complainant filed a civil action on April 20,

1998, (identified as Civil Action No. CV 97-8888 MRP (RZx)) in the

United States District Court for the Central District of California.

The record further discloses that the allegations raised therein are

the same as those raised in the instant complaint. The record reveals

that on April 29, 1998, the court granted a motion for summary judgment

in favor of the agency and against complainant.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(3)) allows for the dismissal of a

complaint that is pending in a United States District Court in which the

complainant is a party, or that was the basis of a civil action decided

by a United States District Court in which complainant was a party.

The purpose of this provision is to avoid duplicative investigation of

identical complaints by two different fact-finding bodies.

In the present case, the record reveals that complainant filed a

civil action raising the same issues involved in the present complaint.

The record reveals that a decision has been entered by the district court

on complainant's civil action, thus we find that complainant is barred

from pursuing the present EEO complaint. Accordingly, the agency's

decision to dismiss complainant's complaint was proper and is AFFIRMED.

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 (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:

April 6, 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 Assistant

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.