01992155
11-16-1999
Judge T. Huhner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Judge T. Huhner v. United States Postal Service
01992155
November 16, 1999
Judge T. Huhner, )
Complainant, )
)
v. ) Appeal No. 01992155
) Agency No. 4-G-700-0186-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On August 15, 1998, complainant filed a formal complaint of discrimination
on the bases of race (Caucasian) and physical disability (back injury),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq.<1> Therein, complainant alleged that
he was subjected to discrimination when on April 21, 22, and 24, 1998,
he was denied the opportunity to work in the Parts Room. On November 5,
1998, the agency accepted complainant's claim.
By letter dated November 10, 1998, complainant contested the agency's
characterization of his complaint. Specifically, complainant claimed
that not only was he denied an opportunity for advancement, but also the
denial was "deliberate and with malice." Further, complainant disputed
the agency's use of the term "negroid," claiming that it prejudiced
his complaint. The record indicates that the EEO Counselor in her
report stated that a "Negroid" was allowed to work in the Parts Room
during the time in question. Complainant also stated that he did not
waive anonymity; he did not file a grievance on the matter contested;
and he was not aware of management's position on his complaint. By final
decision dated December 10, 1998 (FAD), the agency declined to change the
characterization of complainant's complaint or scope of its investigation.
On December 28, 1998, complainant received the FAD, and timely appealed
to this Commission on January 18, 1999.
On appeal, complainant argues that the term "negroid" is offensive, and
should be stricken from his complaint and investigation. Complainant also
contends that his complaint was mishandled.
The agency's alleged improprieties during the processing of his complaint
do not give rise to separate complaints. See 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified at 29 C.F.R. �1614.107(a)(8)) (requiring
the dismissal of complaints alleging dissatisfaction with the processing
of a previously filed complaint). If a complainant is dissatisfied with
the processing of his pending complaint, he should be referred to the
agency official responsible for the quality of complaints processing.
Agency officials should earnestly attempt to resolve dissatisfaction
with the complaints process as early and expeditiously as possible.
See EEOC-Management Directive (MD) 110 (5-25,26) as revised Nov. 9, 1999.
Given the nature of complainant's claims of improper processing, we
find that the proper method for addressing such matters would be within
the continued processing of the complaint itself or on appeal from the
final agency decision issued therein. Any remedial relief to which
complainant would be entitled would necessarily involve the processing
of the underlying complaint. Consequently, the agency properly declined
to expand the scope of its investigation.
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 16, 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
_________________________
clerk
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.