01996036
08-08-2000
Zedie E. Ramage, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Zedie E. Ramage v. United States Postal Service
01996036
August 8, 2000
Zedie E. Ramage, )
Complainant, )
)
v. ) Appeal No. 01996036
) Agency No. 4-F-000-0004-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) pertaining to 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 the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq.<1> We
accept the appeal in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. � 1614.405).
After unsuccessful EEO counseling, complainant filed a formal
EEO complaint on May 21, 1999, alleging that he was subjected to
discrimination on the bases of race, sex, color, national origin,
religion, age, and reprisal when he received a subpoena to appear
and provide deposition testimony regarding his EEO complaint
(No. 1-F-937-0006-98) on January 11, 1999, but was not paid the full
amount of time and expenses to which he was entitled. Specifically,
complainant claims that he was entitled to 2 additional hours at the
overtime rate, and 21/2 hours at the penalty overtime rate, in addition
to the 8 hours of straight time, and expenses, he had already received
as reimbursement. Complainant also claimed that the Administrative Judge
(AJ) who authorized the subpoena did not have the authority to do so,
or alternatively, that it was issued without the AJ's authority.
In its FAD, the agency dismissed the complaint, finding that this issue
was before the Administrative Judge (AJ) adjudicating the prior complaint.
The FAD also determined that the instant complaint does not state a claim.
Neither party has submitted a statement on appeal.
The Commission agrees with the FAD that a claim regarding the issuance of
subpoenas at the hearing or pre-hearing stage is a matter properly before
the AJ, and that complainant should have raised this issue in this forum.
See EEOC-MD 110 (Chapter 7), as revised, November 9, 1999. Accordingly,
the agency's decision to dismiss this claim was proper and is AFFIRMED.
Regarding complainant's claim concerning the purported failure of
the agency to pay him on January 11, 1999, the record reveals that
complainant filed a grievance regarding this same matter, and that the
grievance was settled at the Step 2 stage, whereby the agency entered
into a settlement agreement, dated March 2, 1999, to pay the overtime and
penalty overtime amounts requested by complainant regarding his January
11, 1999 testimony. The Commission determines that the proper forum for
complainant to raise his claim regarding the agency's nonpayment under
the March 2, 1999 settlement agreement is within the grievance process,
because this matter had been fully resolved in that forum prior to the
issuance of the FAD. It is inappropriate to now use the EEO process to
attempt to enforce the terms of a settlement agreement which was created
under the grievance process. Accordingly, the agency's decision to
dismiss the claim relating to reimbursement on January 11, 1999, was
proper and is AFFIRMED..
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:
August 8, 2000
____________________________
Date Carlton M. Hadden, Director
Office of Federal Operations
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.