01980826
03-02-1999
Alice M. Lumpkin, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Alice M. Lumpkin v. United States Postal Service
01980826
March 2, 1999
Alice M. Lumpkin, )
Appellant, )
)
v. ) Appeal No. 01980826
) Agency No. 1-C-441-0075-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated October 17, 1997, which the agency issued pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a) and (b). The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
The appellant sought EEO counseling on January 31, 1997, regarding
agency complaint number 1-C-441-0075-97. The appellant alleged that the
limited duty clerk assignment she had been performing since November 23,
1996, had worsened her disability. She also alleged that the agency was
treating her less favorably (based on race, sex, age, physical disability,
and retaliation) than three other employees regarding the provision of
limited duty assignments on a long-term basis. The appellant filed a
formal complaint, dated May 20, 1997, alleging disparate treatment in
the provision of long-term limited duty positions.
The appellant sought EEO counseling again on February 25, 1997, regarding
agency complaint number 1-C-441-0080-97. The record does not contain a
copy of the appellant's "Information for Precomplaint Counseling" form.
The appellant filed a formal complaint, dated April 22, 1997, which
appears to challenge her reassignment to a permanent part-time-flexible
distribution clerk position, effective February 15, 1997.
The agency dismissed the appellant's complaint on the ground that
it stated the same claim (reassignment from a full-time position to
a part-time-flexible position) that was pending before the agency in
agency complaint number 1-C-441-0080-97. Additionally, the agency
dismissed the appellant's complaint on the ground that the appellant
did not timely contact an EEO counselor regarding her reassignment,
effective November 23, 1996.
When asked for a copy of the acceptance letter for agency complaint
number 1-C-441-0080-97, the agency informed the Commission that it was
unavailable because the complaint was part of a class action.
EEOC Regulation 29 C.F.R. �1614.107(a) requires the dismissal of
allegations that state the same claim that is pending before or has been
decided by the agency or the Commission. The intent of this regulation
is to eliminate duplication of effort when possible. EEOC Regulation
29 C.F.R. �1614.106(d)(2) requires the agency to conduct a complete and
fair investigation within 180 days of the filing of the complaint unless
the parties agree to extend the investigation period. The intent of
this regulation is to ensure the timely and appropriate resolution of
complaints.
It appears that the agency views the two complaints as stating the same
claim because the appellant requests the same remedies in both complaints:
return to her modified city/rural carrier assignment; restoration of her
seniority and other job benefits, monetary damages, and attorney's fees.
However even if the complaints state the same claim, there is no evidence
in the record that the agency has accepted and investigated agency
complaint number 1-C-441-0080-97 as required by Commission regulation.
There also is no evidence that the agency has certified a class complaint
that encompasses the allegations raised in this complaint or that such
a class complaint has even been filed. Lacking any evidence that the
agency is actively processing agency complaint number 1-C-441-0080-97,
the Commission finds that the agency improperly dismissed the instant
complaint on the ground that it states the same claim that is pending
before the agency.
Moreover, it appears that implicit in the instant complaint, when read in
conjunction with the appellant's "Information for Precomplaint Counseling"
form, is an allegation that the agency failed to provide the appellant
with reasonable accommodations for her disabilities once the agency
determined that the appellant's medical restrictions would be permanent.
The instant complaint, when read in conjunction with the appellant's
"Information for Precomplaint Counseling" form, also alleges disparate
treatment, based on race, sex, age, physical disability, and retaliation,
regarding provision of limited duty assignments on a long-term basis.
There is no indication in the record that the appellant raised these
issues in agency complaint number 1-C-441-0080-97. For this additional
reason, the Commission finds that the agency improperly dismissed agency
complaint number 1-C-441-0075-97 on the ground that it states the same
claim that was pending in agency complaint number 1-C-441-0080-97.
The agency also dismissed the appellant's complaint on the ground that
she did not timely contact an EEO counselor regarding the November 23,
1996 detail. The Commission finds that the appellant's complaint does not
contest her November 23, 1996 detail, but rather, raises the allegations
discussed above.
CONCLUSION
For the reasons stated above, the Commission REVERSES the agency's
dismissal of the appellant's May 20, 1997 complaint and REMANDS the
complaint for processing as ORDERED below.
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 acknowledgment 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
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:
Mar 2, 1999
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations