Tony G. Hill, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 12, 2000
01a00991 (E.E.O.C. Jul. 12, 2000)

01a00991

07-12-2000

Tony G. Hill, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Tony G. Hill, )

Complainant, )

)

v. ) Appeal No. 01A00991

) Agency No. 4F-920-0195-97;

) 4F-920-0209-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision

concerning her 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. and Section 501 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. � 791 et seq. <1> The appeal is accepted

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. � 1614.405).

According to the record, Agency Case Nos. 4F-920-0195-97 and

4F-920-0209-97, filed by complainant were pending before an Administrative

Judge(�AJ�). Prior to the hearing, the AJ ordered the agency to

consolidate the above cases with Agency Case Nos. 4F-920-0088-98 and

4F-920-0119-98. Subsequent to the consolidation, and prior to a hearing,

complainant entered into a settlement agreement with the agency which

required her to withdraw all EEO complaints associated with her emergency

placement and subsequent removal. Thereafter, on August 5, 1999,

complainant withdrew Agency Case Nos. 4F-920-0088-98 and 4F-920-0119-98.

On September 30, 1999, the agency issued a final decision stating that

pursuant to the settlement agreement of May 4, 1999, the above four

cases were withdrawn and were therefore considered closed. It is from

this decision that complainant appeals.

On appeal, complainant argues that Agency Case Nos. 4F-920-0195-97 and

4F-920-0209-97 are not associated with her emergency placement and

subsequent removal and, therefore, they are not subject to the May

4, 1999 settlement agreement. Complainant contends that Agency Case

Nos. 4F-920-0195-97 and 4F-920-0209-97 should not have been closed,

and they should have been forwarded to the Commission for a hearing.

After a thorough review of the record, the Commission finds that Agency

Case No. 4F-920-0209-97, specifically involved complainant being issued

a notice of removal. Therefore, it is subject to the May 4, 1999,

settlement agreement, which required complainant to withdraw all EEO

complaints associated with her emergency placement and subsequent removal.

Accordingly, the agency decision to close Agency Case No. 4F-920-0209-97

was proper.

With respect to Agency Case No. 4F-920-0195-97, the Commission finds

that there is insufficient evidence in the record to determine whether

this case is associated with complainant's emergency placement and

subsequent removal. The Commission notes, that this case involves

complainant being denied a route, threatened with discipline, and

spoken to in an abusive and violent manner. However, this information

is inconclusive in determining whether this case involves complainant's

emergency placement and subsequent removal.

For the reasons set forth herein, the Commission hereby VACATES and

REMANDS Agency Case No. 4F-920-0195-97 for a supplemental investigation in

accordance with the following ORDER, and the applicable EEOC Regulations.

The Commission AFFIRMS the dismissal of Agency Case No. 4F-920-0209-97.

ORDER

The agency is ORDERED to conduct a supplemental investigation, which

shall include the following actions:

1. The agency shall conduct an investigation to determine whether

Agency Case No. 4F-920-0195-97 is subject to clause five of the May 4,

1999, settlement agreement, i.e., whether it was resolved through the

agreement;

2. The agency shall complete the supplemental investigation and issue

a new final decision or notify the appropriate District Office of the

request for a hearing regarding Agency Case No. 4F-920-0195-97 within

thirty (30) calendar days of the date this decision becomes final.

A copy of the new final decision or notice requesting a hearing 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 (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

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:

July 12, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 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.