01a02261
07-19-2000
Wendell P. Tyler, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Wendell P. Tyler, )
Complainant, )
)
v. ) Appeal No. 01A02261
) Agency No. 4-J-604-0029-00
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated January 13, 2000, dismissing his 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> In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (African-American), disability
(menigiomas), and in reprisal for prior EEO activity when he was not
reinstated for employment on April 20 and September 28, 1999.
The agency dismissed the complaint for stating the same claim raised
in Agency No. 4-J-604-1019-96. On appeal, complainant argues that
his present requests for reinstatement were not made under the same
circumstances as those referenced in Agency No. 4-J-604-1019-96.
Specifically, complainant notes that he was placed on the �reinstatement
roster� December 21, 1998, when he provided the agency with evidence that
his psychiatric illness was a misdiagnosis. According to complainant,
the prior requests for reinstatement, and the decisions from Agency
No. 4-J-604-1019-96, only dealt with 1995 - 1996, and did not take into
account that complainant was misdiagnosed with paranoid schizophrenia,
instead of with a large brain tumor. Complainant attached a letter from
his physician, dated July 8, 1999, informing the agency that complainant
was not psychologically ill, and that �[t]he result from the tumor
removal has been the resolution of his psychotic symptoms.�
In response, the agency notes that complainant was terminated March 25,
1994, and has filed numerous complaints concerning the agency's failure
to reinstate him. These complaints are: Agency Nos. 4-J-604-1089-94,
4-J-604-1006-94, and 4-J-604-1615-93.
The record contains EEOC Appeal decisions, an EEOC Administrative Judge's
recommended decision, and final agency decisions concerning complainant's
requests for reinstatement from 1994 - 1996. None of these documents
reference complainant's misdiagnosis, or the physician's findings that
his symptoms disappeared after the tumor was removed.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) provides
that the agency shall dismiss a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
Generally, a complaint concerning a request for reinstatement states
the same claim as prior complaints involving requests for reinstatement.
See Price v. Department of the Navy, EEOC Appeal No. 01973867 (July 9,
1998) (second request for reinstatement does not give rise to a new
claim). However, when complainant's circumstances have changed since
his previous request such that he would expect a different result, the
subsequent reinstatement request may involve a separate, cognizable claim.
See Lopez v. United States Postal Service, EEOC Appeal No. 01976459
(January 7, 1999) (finding subsequent request for reinstatement involved
the same claim because the claimant's circumstances have not changed);
Broyles v. United States Postal Service, EEOC Appeal No. 01973116 (June
8, 1998) (finding a request for reinstatement, filed after the claimant
learned similarly situated individuals had been reinstated, involved a
different claim from reinstatement requests made five years earlier).
In the present case, complainant has shown a change in circumstances
from his prior requests for reinstatement. The new medical information,
and complainant's placement on the reinstatement roster involve different
circumstances and expectations from his prior requests for reinstatement.
Therefore, the requests do not involve the same matter raised in prior
complaints.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the claim is REMANDED
for further processing.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant 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 complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant 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 (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 (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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 19, 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.