Larry J. Wells, Appellant,v.William M. Daley, Secretary, Department of Commerce, (Bureau of the Census), Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01991465 (E.E.O.C. Nov. 5, 1999)

01991465

11-05-1999

Larry J. Wells, Appellant, v. William M. Daley, Secretary, Department of Commerce, (Bureau of the Census), Agency.


Larry J. Wells v. Department of Commerce

01991465

November 5, 1999

Larry J. Wells, )

Appellant, )

)

v. ) Appeal No. 01991465

) Agency No. 98-63-02620

William M. Daley, )

Secretary, )

Department of Commerce, )

(Bureau of the Census), )

Agency. )

______________________________)

DECISION

For the reasons set forth below, the Commission finds the agency

committed no reversible legal error in its undated final decision

(FAD),<1> received by appellant on November 7, 1998, which dismissed 3

out of 4 allegations in appellant's June 22, 1998 formal EEO complaint

for mootness, pursuant to 29 C.F.R. �1614.107(e). We accept appellant's

December 7, 1998 appeal as timely, in accordance with EEOC Order No. 960,

as amended. We are not persuaded by appellant's arguments on appeal to

reach a contrary conclusion.

In his complaint, appellant alleged, in relevant part, that "I made it

perfectly clear [to the EEO Counselor] that the issue I was requesting

counseling on was that the reinstatement system was very open to

discrimination against me." (Emphasis in original.)

The FAD accepted the following allegation, based on retaliation,<2>

for investigation:

The NPC [(National Processing Center) formerly known as the Data

Preparation Division during appellant's tenure with the agency from 1979

to 1985] established an open record system for reinstatement eligible

applicants, which ensured that supervisors would be able to see his

entire file, note his EEO activity and, therefore, refuse to hire

him.[<3>][Agency footnote omitted.]

The FAD dismissed appellant's remaining 3 allegations, which pertained

to his dissatisfaction with the complaint process, as moot.

On appeal, appellant appears to be challenging the FAD's framing of the

accepted issue. He contends, in pertinent part, as follows:

The open record system for reinstatement eligibles has been in existence

for many years. In my formal EEO complaint...I clearly state my concern

that the reinstatement method of allowing managers to review reinstatement

files and pick and make hiring decisions using whatever criteria they

wish is likely to eliminate the hiring of persons such as me.

The Commission finds appellant's argument to be a distinction without

a difference. We find the gravamen of appellant's complaint to be an

attack on the agency's open record system for reinstatement eligibles.

With regard to appellant's remaining allegations, we find they are, in

effect, an attempt to file a "spin off" complaint, which is a pleading no

longer permitted under 29 C.F.R. Part 1614 (October 1, 1992). We find

the FAD properly addressed those allegations pertaining to appellant's

dissatisfaction with the agency's processing of his complaint.

The FAD is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(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. 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 (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:

11/05/1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1We note that the agency, inexplicably, split the FAD into two agency case

numbers. The accepted allegation was assigned the present number; the

dismissed allegations were assigned case number 98-63-10161. The

Commission has retained the case number the agency originally assigned to

the FAD, i.e., 98-63-02620.

2See Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e et seq.

3The FAD noted that, in February 1998, appellant "was selected as a

Clerk in the NPC's Geography division."