01a00675
02-29-2000
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. 01A00675
) Agency No. 1G-741-0068-99
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 11, 1999, he was given an unfair evaluation for
the position of Manager, Maintenance Operations, EAS-20, and thereafter
not awarded the position of Manager, Maintenance Operations.
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 issue
in his June 21, 1999 complaint, Agency No. 1G-741-0067-99. Therefore,
the agency dismissed the complaint.
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.
The record reveals that on June 21, 1999, complainant filed a complaint
alleging the agency discriminated against him on the basis of reprisal.
(Agency No. 1G-741-0067-99). Complainant cited ten specific incidents
of reprisal, including his claim that on March 15, 1999, he was given an
unfair evaluation. The agency accepted, among other things, his claim
that he was given an unfair evaluation.
However, upon review, we do not agree that the instant complaint and the
complaint filed June 21, 1999 are identical. In the instant complaint,
complainant alleges the agency retaliated against him when he was given an
unfair performance evaluation which resulted in his failure to be awarded
the position of Manager, Maintenance Operations. In the prior complaint
(Agency No. 1G-741-0067-99), complainant only alleged that on March 15,
1999, he was given an unfair performance evaluation based on reprisal.
Thus, we disagree with the agency's contention that the two complaints
are identical.
However, since the negative performance evaluation claim purportedly led
to his nonselection, we find the two claims should be considered together
in one investigation. Therefore, the instant case, which involves the
nonselection, should be decided together with the performance evaluation
claim, which is currently pending before the agency. Thus, 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 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 complainant's complaint at issue
concerning his non selection to the Manager, Maintenance Operations
position and his previous complaint concerning, among other things,
his unfair performance evaluation (Agency No. 1G-741-0067-99) 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
(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:
February 29, 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.