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