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.