01984580
05-25-2000
Walter J. Bailey, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Walter J. Bailey, Jr., )
Complainant, )
)
v. ) Appeal No. 01984580
) Agency No. 1D-297-0001-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal, on May 15, 1998, with this Commission,
from the agency's final decision (FAD) dated May 1, 1998, dismissing his
formal EEO 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.<1> See 64 Fed. Reg. 37, 644; 37,659 (1999) (to be codified
and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.402).
Although the record in this matter is not entirely clear, the salient
facts appear to be the following: complainant, a level 5 Air Records
Processor, initiated EEO counseling on January 26, 1998. According
to the EEO Counselor's report (ECR), in relevant part, complainant
claimed discrimination in connection with a January 20, 1998 letter he
had received from a named Human Resources Specialist (�HRS�) �informing
him the data he requested regarding test scores may not be available.�
In the agency's �Information for Precomplaint Counseling� form,
complainant claimed, in pertinent part, that HRS had informed him, in
his January 20, 1998 letter, that �the data for my test scores may not be
available. This is the fourth attempt at trying to get this information.�
Complainant asserted he was entitled to the requested information �in the
Administrative Support Manual under testing and under the Privacy Act.�
Complainant claimed �a pattern in practice [sic], which has been on going
[sic] and continuous in this regard; from 1995 and on going� [sic].
By way of requested relief, complainant sought, in part, �the job I
requested,� which he identified as �ET�.
In his March 11, 1998 complaint, complainant alleged that he was
subjected to discrimination for prohibited reasons. Specifically,
complainant raised the following claims:
I allege a continuing violation of harassment, from 1995 and on
going [sic]; when I took the test for Electronic Technician level 9
[hereinafter, �ET-9"]. I was denied both the job and any information
pertaining to who did get these jobs. I was also continuously denied
information on my test scores, the harassment is on going [sic].
As part of the relief requested, complainant sought a promotion to ET-9,
retroactive to 1995.
The FAD, in substance, defined complainant's complaint as follows:
(1) he was denied the ET position, from July 3, 1995, as well as
information pertaining to who received the jobs; and
(2) on January 20, 1998 , and ongoing, he was denied information on his
test scores.
The agency dismissed claim (1) for untimely EEO counseling, see 64
Fed. Reg. 37,656 (1999) (to be codified and hereinafter referred to as 29
C.F.R. � 1614.107(a)((2)), finding that complainant's January 26, 1998
EEO Counselor contact was beyond the applicable time period of 45 days.
See 64 Fed. Reg. 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.015(a)(1)). The FAD also rejected complainant's
claims as a continuing violation. The FAD noted the permanent nature of
his claims, as well as the fact that complainant had previously filed a
grievance in connection with both the denial of position and appurtenant
information.
The FAD dismissed claim (2) for failure to state a claim. See 64
Fed. Reg. 37,656 (1999) (to be codified and hereinafter referred to
as 29 C.F.R. � 1614.107(a)(1)). The FAD averred that, according to a
November 27, 1995 letter, �the parties agreed at the national level
that employees who fail the examination are only entitled to written
notification of their ineligibility, and not specifics that may give the
employee any advantages in future examinations, including but not limited
to numerical scores. Therefore, complainant was provided information
pertaining to his test scores.�
On appeal, complainant contends that he timely initiated EEO
counseling on January 26, 1998, in connection with HRS' January 20, 1998
letter. Complainant further appears to assert that he lacked sufficient
information to file a claim earlier that would be taken seriously.
He also argues, in relevant part, that �this has been an issue since
1995.� In addition, complainant argues, inter alia, that he is entitled
to the information he has sought under the Freedom of Information Act.
In this regard, he cites 39 C.F.R. � 265.7(a). He also argues that a
national agreement cannot supersede prevailing law.
There was no agency response to complainant's appeal.<2>
The Commission notes that the agency dismissed the instant complaint for
failure to state a claim and on the grounds of untimely EEO Counselor
contact. However, the Commission determines that this case is more
properly analyzed in terms of whether complainant raised the same claims
previously raised that were pending before or which had been decided by
the agency or Commission. See 64 Fed. Reg. 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.107(a)(1)).
The Commission has previously determined that complainant's claim that he
was nonselected for the maintenance position of ET-9 on May 13, 1995, was
untimely. See Bailey, Jr. v. USPS, EEOC Appeal No. 01990693 (August 26,
1999) (�Bailey, Jr. I�).<3> The Commission also noted in Bailey, Jr. I,
supra, �a statement by [complainant] in May 1997, indicating that he was
told in 1995, after he failed a level 9 exam that he should look into
it. [Complainant] stated that he was told that he could have passed and
still failed as management has a way of keeping out of the maintenance
craft those they do not want in the craft.� Accordingly, we are not
persuaded, in the present case, that complainant's claim pertaining to
the January 20, 1998 letter at issue raises any new claims. We note,
in particular in this regard, complainant's assertion that the letter
involves his �fourth attempt at trying to get this information� (i.e.,
his test scores). Cf. Grigg v. Department of the Navy, EEOC Request
No. 05940892 (February 9, 1995). Finally, we also note that the Commission
lacks jurisdiction to enforce FOIA and the processing of FOIA requests
under 39 C.F.R. � 265. See Bailey, Jr. v. USPS, EEOC Appeal No. 01990286
(October 26, 1999).
Having reviewed the entire record, the arguments on appeal including
those arguments not expressly addressed herein, and for the foregoing
reasons, the Commission hereby AFFIRMS the FAD on other grounds.
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 (S0400)
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. 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:
May 25, 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.
2On July 3, 1998, complainant sought to file �a clarification� to
his June 12, 1998 statement in support of his appeal. Complainant's
�clarification� is untimely, and the Commission has declined to consider
it. See 64 Fed. Reg. 37,659 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.403).
3It appears that complainant initially raised the issue of his
ET-9 nonselection in a July 30, 1997 EEO complaint. The Commission
subsequently remanded that claim for a determination as to timeliness. See
Bailey, Jr. v. USPS, EEOC Appeal No. 01977086 (March 2, 1999).