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.