01a00589
02-28-2000
Pleas A. Thompson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.
Pleas A. Thompson, )
Complainant, )
)
v. ) Appeal No. 01A00589
) Agency No. 1G-741-0072-99
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W. Areas), )
Agency. )
____________________________________)
DECISION
On October 22, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on October
7, 1999, 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> In his complaint, complainant alleged that
he was subjected to discrimination on the basis of reprisal (prior EEO
activity), when on April 28, 1999, he was informed:
he would not receive the same amount of higher level time and pay as
other employee;
he would not be made whole for his detail ending;
he would not be assigned the Manager, Maintenance Operations position
non competitively;
he would not be evaluated for the period of July 1999 until April 9,
1999; and
he would not be allowed to act in the Manager, Maintenance Operations
position.
The agency dismissed the complaint pursuant to EEOC Regulation 107(a),
for stating the same claim pending before the agency or Commission.
Specifically, the agency found that complainant raised the same issues
in his June 21, 1999 complaint, Agency No. 1G-741-0067-99. Therefore,
the agency dismissed the complaint. On appeal, the agency argues that
complainant filed two other complaints concerning �similar issues,� and
therefore requests we affirm the dismissal.
The record reveals that on June 21, 1999, complainant filed a complaint
(Agency No. 1G-741-0067-99) alleging the agency discriminated against him
on the basis of reprisal. Complainant cited ten specific incidents of
reprisal in that complaint. The agency accepted six of his claims for
investigation and dismissed the remaining claims. Complainant did not
appeal this final decision.<2>
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides that the agency shall
dismiss a complaint that states the same claim that is pending before
or has been decided by the agency or Commission.
Upon review of the instant case, we find only one of complainant's claims
in the instant case is identical to a prior complaint. Specifically,
complainant's claim that he was not assigned to the Manager, Maintenance
Operations position non competitively, was also raised in Agency
No. 1G-741-0068-99. For that reason, the agency's decision to dismiss
that claim as it was already raised in a prior complaint is AFFIRMED.
The remaining claims in the instant complaint, however, do not appear
to be identical to prior claims made by complainant, nor have they been
properly identified or defined by the agency so that we are able to
determine if they are identical to his prior complaints. On remand,
the agency is advised to speak with complaint regarding his claims and
attempt to clarify the record so that he is afforded a chance to present
an integrated and coherent claim.
Finally, since the claims in the instant complaint as well as his claims
in a related case, EEOC Appeal No. 01A00675 are related or similar to
claims which are pending before the agency, the agency is hereby advised
to consolidate these complaints for joint processing. 64 Fed. Reg. 37,644,
37,661 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.606).
Accordingly, the agency's decision with respect to complaint's claims (1,
2, 4, and 5) is REVERSED, and the complaint is REMANDED to the agency
for further processing in accordance with this decision and applicable
regulations.
ORDER (E1199)
The agency is ORDERED to consolidate the complaint at issue with the
following complaints: (1) Agency No. 1G-741-0068-99; and (2) Agency
No. 1G-741-0067, which is pending before the agency, for joint processing
in accordance with 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.606). The agency shall
acknowledge to complainant that it has received the remanded complaint
and notify complainant of the consolidation of the complaint 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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
February 28, 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.
2Complainant filed another complaint (Agency No. 1G-74-0068-99), which was
appealed to this office. See Thompson v. United States Postal Service,
EEOC Appeal No. 01A00675.