01984457
01-18-2000
Robert H. Vunder, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert H. Vunder v. United States Postal Service
01984457
January 18, 2000
Robert H. Vunder, )
Complainant, )
)
v. ) Appeal No. 01984457
) Agency Nos. HO-0132-95
William J. Henderson, ) HO-0169-95; HO-0048-96;
Postmaster General, ) HO-0151-94 (A - T);
United States Postal Service, ) HO-0150-95; HO-0133-95
Agency. )
_______________________________)
DECISION
Complainant filed the instant appeal from the agency's decision dated
April 3, 1998 dismissing complainant's complaints for failing to state a
claim.<1> The agency defined the complaints as alleging that complainant
was discriminated on the bases of race, color, sex, national origin,
age, and retaliation when he was not selected for approximately 25 Postal
Career Executive Service positions nationwide and at Postal headquarters
beginning December 1992. The agency also indicated that HO-0150-95
concerned a different claim for which complainant was not aggrieved.
On appeal, the agency stated that complainant alleged in HO-0150-95 that
he was discriminated against on the bases of race and retaliation when his
Freedom of Information Act (FOIA) request of February 2, 1995, was denied.
The Commission finds that the agency properly dismissed HO-0150-95
for failure to state a claim pursuant to the regulation set forth at
64 Fed. Reg. 37,644, 37656 (to be codified and hereinafter cited as 29
C.F.R. � 1614.107(a)(1)). The EEO process is not the forum to challenge
FOIA denials.
Regarding the nonselections at issue in the other complaints (complainant
has not challenged the framing of these complaints), we find that
complainant is aggrieved and that the agency improperly addressed the
merits of the claims in a procedural decision. The agency's argument
that other persons share complainant's claim and that the agency's
selection policies "were applied equally regardless of race, color,
national origin, sex, age, etc." addresses the merits of complainant's
nonselection claims. Therefore, we find that the agency improperly
dismissed the nonselection claims.
The agency stated in the decision that complainant withdrew his request
for a hearing before an EEOC Administrative Judge and requested a final
agency decision. Complainant has not disputed the agency's statements
regarding the withdrawal. Therefore, the Commission shall remand the
nonselection claims so that the agency may take final action on the
matter pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37657 (to be codified and hereinafter cited as 29 C.F.R. � 1614.110)).
The agency's decision dismissing the FOIA claim (HO-0150-95) is AFFIRMED.
The agency's decision the nonselection claims (HO-0132-95; HO-0169-95;
HO-0048-96; HO-0151-94 (A - T); and HO-0133-95) is REVERSED and we
REMAND the nonselection claims to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER
The agency shall take final action on the nonselection claims pursuant
to 29 C.F.R. � 1614.110 within 60 days of the date this decision
becomes final. A copy of the agency's final decision must be sent to
the Compliance Officer as 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 (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:
January 18, 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
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.