01996179_r
05-14-2001
Verdell S. Whitfield, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Verdell S. Whitfield v. United States Postal Service
01996179
May 14, 2001
.
Verdell S. Whitfield,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996179
Agency No. 4-H-310-0082-97
DECISION
Complainant filed the instant appeal from an agency decision dated July
29, 1999 dismissing the instant complaint (filed on January 27, 1997)
for stating the same claim as raised in another complaint.
In the complaint filed January 27, 1997, complainant claimed that she
was discriminated against on the bases of race (Black), sex (female), and
in retaliation for prior EEO activity. The agency previously dismissed
the complaint for failure to state a claim; however, the Commission
found that the record was unclear and remanded the case to the agency
for further processing. See Whitfield v. United States Postal Service,
EEOC Request No. 01972985 (May 18, 1999).
The agency decision dated July 29, 1999, defines the complaint as a
claim of discrimination where complainant claims that the August 4,
1993 settlement agreement was breached by management when complainant
was forced to resign effective September 12, 1994, and her subsequent
request for reinstatement was denied. The agency dismissed complainant's
complaint for claiming the same breach claim as claimed under Case
No. 4-H-310-0033-97, which was previously dismissed by the agency
as being identical to the breach of settlement claim made under Case
No. 4-H-310-2690-93.
In her complaint complainant lists no claims; rather, she refers
to unspecified documents that she submitted to the EEO Counselor.
Complainant's claims are described in the EEO Counselor's Inquiry report
as follows:
Counselee advised she was discriminated against when she received a
Final Agency Decision pertaining to EEO Complainant, 4-H-310-2690-93.
Counselee advised alleged disciplinary files were still present.
She further advised she was forced to resign on 9/12/94.
On appeal complainant states that she �filed an EEO complaint concerning
harassment, discrimination and not being treated with respect and
dignity.� Complainant also specifically refers to harassment by
management and her co-workers, assignment of duties outside of her craft,
and threats of retaliation and physical abuse that forced her to resign.
Additionally, she claims that she was given bad evaluations containing
false information that resulted in her being denied reinstatement.
These claims were not addressed by the agency. Furthermore, it is
unclear whether complainant is claiming a breach of the August 4, 1993
settlement agreement, subsequent discrimination or both.
The prior order issued by the Commission on May 18, 1999 stated,
The agency shall contact appellant to clarify the allegations at issue
in the instant complaint. Thereafter, and no later than 60 days after
the date this decision becomes final, the agency shall issue a letter
to appellant accepting the complaint for investigation or issue a new
decision dismissing the complaint.
Despite the order issued by the Commission, there is no indication that
the agency contacted appellant to clarify her claims, and, the record
is still unclear as to what complainant is claiming.
Therefore, we shall again remand the case to the agency in order for the
agency to contact complainant to determine: (1) whether complainant is
claiming that the notice of removal issued on September 8, 1994, itself,
is a breach of the August 4, 1993 settlement agreement and/or whether
it should be treated as a claim of discrimination under 29 C.F.R. �
1614.105;<1> (2) whether the agency's alleged February 28, 1995 denial
of complainant's request for reinstatement, itself, is a breach of the
August 4, 1993 settlement agreement and/or whether it should be treated
as a claim of discrimination under 29 C.F.R. � 1614.105; and (3) whether
complainant makes any other claims.
The agency's decision dismissing the complaint is VACATED. We REMAND
the complaint to the agency for further processing in accordance with
this decision and the applicable regulations.
ORDER
The agency shall, within 30 days of the date this decision becomes
final, send a letter to complainant requesting clarification of the
matter from complainant. If the agency finds that there is a claim of
breach, then the agency shall issue a new decision, within 60 days of
the date this decision becomes final, pursuant to 29 C.F.R. � 1614.504.
If the agency finds that there is a claim of discrimination, then the
agency must process the claim pursuant to 29 C.F.R. � 1614.106. If the
agency determines that complainant is raising a claim of discrimination,
then the agency must, within 60 days of the date this decision becomes
final, send a letter to complainant notifying complainant that it will
be processing the complaint of discrimination. The agency must send a
copy of: (1) the letter to complainant requesting clarification; (2)
the settlement breach decision; and/or (3) the letter to complainant
notifying complainant that the complaint will be processed pursuant to
� 1614.106, to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 14, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The Commission does not decide on appeal whether complainant's claim
of discriminatory removal was timely raised with an EEO Counselor.