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

Equal Employment Opportunity CommissionMar 24, 2000
01992396 (E.E.O.C. Mar. 24, 2000)

01992396

03-24-2000

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


James G. Gilmore, )

Complainant, )

)

v. ) Appeal No. 01992396

) Agency No. 4-G-720-0256-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's January 7, 1999 decision dismissing

the complaint on the bases that it raises the same matter already decided

by the agency or the Commission is not proper pursuant to the provisions

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

referred to as 29 C.F.R. �1614.107(a)(1)).<1>

The record shows that Complainant sought EEO counseling on September

15, 1997, alleging that he had been discriminated against when: (1) on

August 22, 1997, he was given unacceptable light duty accommodations;

(2) the agency intentionally misrepresented facts on an official

government document; and, (3) the agency intentionally violated his

right to confidentiality.

Complainant subsequently filed a formal complaint alleging that he had

been discriminated against on the bases of race, color, sex, age, and

disability when on August 22, 1997, and January 12, 1998: (a) he was

provided with unacceptable accommodation; (b) fraudulent statements

were provided to the Labor Department; (c) the agency misrepresented

facts on official documents; and, (d) the agency violated rights to

confidentiality.

The agency issued a final decision dismissing the complaint on the

grounds that the claims raised therein had been already raised by

Complainant on Agency Case No. 4-G-720-0076-98, which resulted in a

settlement agreement. We note that the agency determined that the

instant complaint is comprised of only two issues: unacceptable light

duty accommodations and fraudulent statements provided to the Office of

Workers Compensation. Moreover, the final agency decision was silent

concerning the other two issues raised by Complainant in his formal

complaint: misrepresentation of facts on official documents and violation

of confidentiality. On appeal, Complainant contends that the only issue

resolved in the settlement agreement was the proposed removal.

A review of the record shows that on February 2, 1998, Complainant sought

EEO counseling in Agency Case No. 4-G-720-0076-98.

In his informal complaint Complainant alleged discrimination on the bases

of mental disability and age when on January 20, 1998, he was issued a

notice of proposed removal. No other issue was raised by Complainant

in his informal complaint. The record also includes a written narrative

provided by Complainant as part of a grievance he filed pursuant to the

collective bargaining agreement. Said narrative shows that Complainant

also raised the following issues: unacceptable accommodation of his

disability on August 22, 1997, and fraudulent documents provided to the

Labor Department. Finally, the record shows that Complainant's informal

complaint did not reach the formal stage of the administrative process

because the parties reached a settlement agreement on February 24, 1998,

which provided in relevant part that �the notice of proposed removal

... will be held in abeyance ... [and Complainant] will be offered a

temporary light duty assignment�.

A review of the record reflects that the claims raised in the instant

complaint were not raised in Agency Case No. 4-G-720-0076-98. The record

shows that the sole allegation raised by Complainant in Agency Case

No. 4-G-720-0076-98 was the proposed removal. Moreover, the issues

raised in Agency Case No. 4-G-720-0076-98 never reached the formal stage

of the administrative process, because a settlement agreement was reached

concerning the proposed removal and a temporary light duty assignment.

Nevertheless, the settlement was silent concerning the claims raised in

the instant complaint: unacceptable documentation, fraudulent documents,

confidentiality and misrepresentation of documents.

Therefore, the agency's decision to dismiss the instant complaint pursuant

to the provisions of 29 C.F.R. �1614.107(a) on the grounds that its issues

were already decided by the agency was improper and is hereby REVERSED.

The complaint, as defined by this decision, is REMANDED for further

processing in accordance with this decision and applicable regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and an

copy of the notice that transmits the investigative file and notice of

rights 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 (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:

March 24, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________

_________________________________

DATE EQUAL EMPLOYMENT ASSISTANT

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 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.