Robert G. Bowling, Complainant,v.Charles R. Barnes, Acting Director, Federal Mediation and Conciliation Service, Agency.

Equal Employment Opportunity CommissionFeb 7, 2000
01991373 (E.E.O.C. Feb. 7, 2000)

01991373

02-07-2000

Robert G. Bowling, Complainant, v. Charles R. Barnes, Acting Director, Federal Mediation and Conciliation Service, Agency.


Robert G. Bowling, )

Complainant, )

)

v. ) Appeal No. 01991373

)

Charles R. Barnes, )

Acting Director, )

Federal Mediation and )

Conciliation Service, )

Agency. )

____________________________________)

DECISION

Complainant filed the instant appeal from the agency's decision dated

November 6, 1998<1> dismissing complainant's complaint as moot pursuant to

the regulation set forth at 64 Fed. Reg. 37,644, 37656 (to be codified as

and hereinafter cited as 29 C.F.R. � 1614.107(a)(5)).<2> The agency

defined the complaint as alleging that complainant was involuntarily

transferred from Nashville to Memphis, Tennessee. The agency found that

the complaint was moot because complainant retired after the complaint

was filed. The record shows that complainant resigned effective October

2, 1998.

On appeal, complainant alleges that he was constructively discharged

from the agency. The agency states on appeal that on December 14, 1998

the agency notified complainant in writing that he needed to contact an

EEO Counselor regarding his constructive discharge claim. Both parties

indicate that complainant has filed an informal complaint possibly, but

not necessarily, regarding the constructive discharge claim. By letter

dated May 20, 1999 the agency informed the Commission that the agency

had not yet received a formal complaint concerning the constructive

discharge claim.

The record does not clearly indicate the status of the constructive

discharge claim. The agency does not argue that complainant has abandoned

the constructive discharge claim. Complainant continues to pursue the

constructive discharge claim on appeal and may be indicating that he

raised the issue with the EEO Counselor. If complainant were to prevail

on the constructive discharge claim, the instant complaint (regarding

the transfer) would not be moot. Therefore, we shall remand the instant

complaint so that the agency may hold the instant complaint in abeyance

until either the agency determines that complainant has abandoned the

constructive discharge claim or the constructive discharge claim is

completely adjudicated.

If the agency finds that it constructively discharged complainant,

then the agency must resume processing the instant complaint from the

point processing ceased. If the agency determines that complainant has

abandoned the constructive discharge claim, then the agency may reissue a

decision dismissing the instant complaint as moot if appropriate. If the

agency issues a decision determining that it did not constructively

discharge complainant, then it may reissue a decision dismissing the

instant complaint as moot if appropriate.

The agency's decision dismissing the complaint is REVERSED and we REMAND

the complaint to the agency for further processing in accordance with

this decision and applicable regulations.

ORDER

The agency shall hold the instant complaint in abeyance until either

the agency determines that complainant has abandoned the constructive

discharge claim or the constructive discharge claim is completely

adjudicated. If the agency finds that it constructively discharged

complainant, then the agency must resume processing the instant

complaint from the point processing ceased. If the agency determines

that complainant has abandoned the constructive discharge claim, then

the agency may reissue a decision dismissing the instant complaint as

moot if appropriate. If the agency issues a decision determining that

it did not constructively discharge complainant, then it may reissue a

decision dismissing the instant complaint as moot if appropriate.

If the agency decides to resume processing the instant complaint, then

the agency shall, within 30 days of a final decision on the merits of

the constructive discharge claim, send a letter to complainant informing

complainant of such a course of action. If the agency decides to dismiss

the instant complaint as moot, then such a decision shall be issued

within 30 days of a final decision on the constructive discharge claim.

A copy of the agency's letter to complainant informing complainant that

processing of the instant complaint will be resumed or a copy of the

new decision dismissing the complaint must be sent to the Compliance

Officer referenced herein.

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 7, 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

1The November 6, 1998 decision rescinded an agency decision dated June

12, 1998.

2On 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.