Richard P. Sheehan, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.

Equal Employment Opportunity CommissionNov 9, 2000
01a03657 (E.E.O.C. Nov. 9, 2000)

01a03657

11-09-2000

Richard P. Sheehan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.


Richard P. Sheehan v. United States Postal Service (N.E./N.Y. Metro

Region)

01A03657

November 9, 2000

.

Richard P. Sheehan,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(N.E./N.Y. Metro Region),

Agency.

Appeal No. 01A03657

Agency No. 4B-028-0048-00

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq.; and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant

alleged that he was discriminated against on the bases of race (White),

color (white), sex (male), age (over 50), and retaliation (prior EEO

complaints) when:

(1 ) on November 29, 1999, he became aware that a less qualified

female had been interviewed and selected for the position of Manager,

Post Office Operations, EAS-25; and

one less qualified Black male, one less qualified female, and one

less qualified Asian male were interviewed by the Review Committee

while he was not.

The agency accepted for investigation the following claim only:

The complainant claims discrimination based on his race, color, sex, age,

and in retaliation for prior EEO activity in that on October 25, 1999,

he was not selected for the position of Manager, Post Office Operations,

EAS Level-25.

Complainant objected to the claim as worded and accepted by the agency,

and insisted that the agency accept his claim as originally submitted.

Since the agency had already accepted the complaint for investigation

and further processing but then denied complainant's request to change

the defined claim, on March 14, 2000, the agency next issued a partial

dismissal of the complaint as defined by the complainant, in accordance

with pre-November 9, 1999 regulations. It did this because it felt

it could not conduct an investigation without an agreement of the

defined claim. Complainant then appealed the partial dismissal to the

Commission.

The Commission notes, however, that the revised regulations, in effect

when complainant submitted his formal complaint on February 3, 2000,

provide in pertinent part that where the agency believes that some but

not all of the claims in a complaint should be dismissed because of

failure to state a claim, the agency shall notify the complainant of its

determination that those claims will not be investigated and place a copy

of the notification in the administrative file. This agency determination

is reviewable by an EEOC Administrative Judge if a hearing is requested on

the remainder of the complaint, but is not appealable until final action

is taken on the remainder of the complaint. 29 C.F.R. � 1614.107(b).

In this regard, the Commission further notes that in its manual offering

technical assistance to agencies regarding the revised regulations,

the following distinction is made:

A �claim� refers to an assertion of an unlawful employment practice

or policy for which, if proven, there is a remedy under the Federal

equal employment statutes. Fragmentation often results from a failure to

distinguish between the claim the complainant is raising and the evidence

(actual information) he or she is offering in support of that claim.

The New Federal EEO Complaint Process and You, A. Identifying and Defining

the Claim in an EEO Complaint, Section IV-10.

The Commission determines that the claim actually raised by the

complainant was correctly defined by the agency in its Acceptance of

Complaint dated March 3, 2000, since complainant is challenging his

non-selection for the position of Manager, Post Office Operations. In

contrast, the claims as originally stated by complainant are simply

evidence offered in support of the underlying claim of discriminatory

non-selection and should be investigated as such.

Based upon a careful review of the record evidence, and for the foregoing

reasons it is therefore the decision of the EEOC to VACATE the FAD and

to REMAND the complaint back to the agency for continued processing as

ordered below.

ORDER

The agency is ORDERED to conduct an investigation concerning complainant's

non-selection for the position of Manager, Post Office Operations,

EAS-25, on October 25, 1999, which shall include:

1. the taking of affidavits from the complainant and all agency officials

having relevant information on complainant's non-selection, to include

the reasons why an allegedly less qualified female was interviewed and

selected for the position, and why allegedly less qualified applicants

were interviewed by the Review Committee while complainant was not; and

2. submission of all relevant documentation concerning the above

actions.

The investigation must be completed within sixty (60) calendar days of

the date this decision becomes final. A copy of the agency's letter to

complainant transmitting a copy of the completed investigative file, as

required by 29 C.F.R. � 1614.108(f), must be submitted to the Compliance

Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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

(R0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 9, 2000

Date

1 On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.