Victor G. Duran, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 14, 1999
05980726 (E.E.O.C. Oct. 14, 1999)

05980726

10-14-1999

Victor G. Duran, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Victor G. Duran v. United States Postal Service

05980726

October 14, 1999

Victor G. Duran, )

Appellant, )

)

v. ) Request No. 05980726

) Appeal No. 01975082

) Agency Nos. HO-0106-95

William J. Henderson, ) HO-0115-96

Postmaster General, ) HO-0116-96

United States Postal Service, ) HO-0035-97

Agency. )

______________________________)

GRANTING OF REQUEST FOR RECONSIDERATION

On April 23, 1998, Victor G. Duran (hereinafter referred to as appellant)

initiated a request to the Equal Employment Opportunity Commission (EEOC)

to reconsider the decision in Victor G. Duran v. United States Postal

Service, EEOC Appeal No. 01975082 (March 31, 1998). EEOC Regulations

provide that the Commissioners may, in their discretion, reconsider

any previous Commission decision. 29 C.F.R. �1614.407(a). The party

requesting reconsideration must submit written argument or evidence

which tends to establish one or more of the following three criteria:

new and material evidence is available that was not readily available

when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);

the previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy,

29 C.F.R. �1614.407(c)(2); and the previous decision is of such

exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3). Appellant's request is granted.

The record shows that, between January 12, 1995 and March 12, 1996

appellant initiated four informal EEO complaints. These requests for

counseling concerned alleged acts of discrimination between January

4, 1995, when appellant's agency employment was terminated and March

22, 1996. Appellant pursued formal EEO complaints on all allegations

and these complaints were eventually consolidated for processing by the

agency. Appellant also initiated counseling on an EEO class complaint on

June 20, 1996 and filed a formal class complaint on September on September

12, 1996. During processing, appellant filed two formal amendments to

the class complaint. On March 18, 1997, appellant, the class agent,

filed a class action in U.S. District Court in Colorado, Civil Action

No. 97-S-548. In the third amendment to the class complaint, appellant

and the other class members emphasized that the class complaint was

expressly limited to claims of discrimination occurring within 45 days

prior to the request for counseling (June 20, 1996) and to alleged acts

of discrimination occurring thereafter.

The previous decision found that appellant was attempting to pursue his

case in two forums because the issues in his individual EEO complaints

were the same as the issues in his class complaint. In his request

for reconsideration, appellant reiterates that he did not intend the

class complaint to include those allegations stated in his individual

EEO complaints.

The Commission agrees that the substance of the general allegations

of discrimination (promotions, awards, removals etc.) contained in

appellant's individual EEO complaints and in the class complaint are

similar. However, as noted above, the class complaint expressly limited

the allegations of discrimination to actions occurring 45 days prior

to June 20, 1996 and to actions occurring thereafter. For this reason,

we find that appellant should be allowed to continue his individual EEO

complaints in order to pursue allegations of discrimination occurring

between January 1995, when he initiated his first individual EEO complaint

and April 1996, when he initiated his last individual EEO complaint.

Accordingly, after a review of appellant's request for reconsideration,

the previous decision and the entire record, the Commission finds that

appellant's request meets the criteria of 29 C.F.R. � 1614.407(c),

and it is the decision of the Commission to grant appellant's request.

The decision of the Commission in Appeal No. 01975082 is VACATED.

The agency's final decision is reversed and the matter remanded for

further processing as set forth herein. There is no further appeal from

the decision of the Commission on this request for reconsideration.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgement to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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

Oct. 14, 1999

DATE Frances M. Hart

Executive Officer

Executive Secretariat