01982309_r
06-18-1999
Charles E. Edwards, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charles E. Edwards, )
Appellant, )
)
v. ) Appeal No. 01982309
) Agency No. 4-G-720-1002-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On February 2, 1998, appellant filed a timely appeal of a December 31,
1997 final agency decision, received by him on January 5, 1998, which
dismissed his complaint pursuant to EEOC Regulation 29 C.F.R. �1614.107(c)
on the grounds that it was the basis of a civil action filed by appellant
in a United States District Court.
In his November 10, 1994 complaint, appellant alleged that he was
discriminated against when in September 1994, he was forced to re-test
for a "city scheme" following his reinstatement.
The record reveals that appellant was terminated from employment on
February 5, 1993. Appellant filed a grievance and an EEO complaint.
An April 30, 1994 arbitration award sustained appellant's grievance
regarding his termination. In Charles E. Edwards v. U.S. Postal Service,
EEOC Appeal No. 01944682 (November 14, 1995), the Commission determined
that appellant's termination was discriminatory and granted the same
relief as the arbitration award, plus other relief. Appellant was
reinstated on August 24, 1994, but he was terminated again in January
1995. A February 26, 1996 letter reveals that appellant was removed from
the agency in January 1995, after his reinstatement, when he failed to
pass "scheme training." The record also reveals that appellant filed a
grievance when he was removed for the second time. In a decision issued
in February 1996, pursuant to the grievance process, appellant's removal
for failure to pass scheme training was determined to be improper and the
agency was ordered to reinstate appellant with full back pay and benefits.
Appellant was reinstated in February 1996.
The record also reveals that appellant filed Civil Action No. PB-C-95-708
in U.S. District Court. The record contains a September 12, 1997 Order
in Civil Action No. PB-C-95-708 which reflects, in relevant part, that
appellant alleged that because he was unlawfully terminated from his
employment in 1993, and in January 1995, he was entitled to, among other
things, compensatory damages for the alleged discriminatory terminations.
The District Court found, in pertinent part, that appellant's
discrimination claims concerning his 1993 and 1995 terminations were
moot, noting the grievance decisions and the EEOC decision regarding
the terminations. The Court concluded that appellant had been granted
all requested available relief through the administrative process and
dismissed appellant's civil complaint.
Upon review, the Commission finds that appellant's complaint was properly
dismissed pursuant to 29 C.F.R. �1614.107(c) because the record reveals
that the subject of appellant's present EEO complaint, i.e., his having
to be re-tested after his reinstatement, was part and parcel of the
January 1995 termination which was raised in the civil action. It was
appellant's failure to pass the test that led to his second termination.
Accordingly, the final agency decision is hereby AFFIRMED.<1>
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 (S0993)
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. 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 (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:
June 18, 1999
DATE Carlton M. Hadden, Acting Director
1Appellant asserts that because he requested a hearing on his complaint,
he is entitled to one. Where an agency dismisses a complaint on
procedural grounds pursuant to 29 C.F.R. �1614.107 et seq., as was the
case herein, there is no right to a hearing.