Judge T. Huhner, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 16, 1999
01992155 (E.E.O.C. Nov. 16, 1999)

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.