01A10179_r
03-28-2001
Earnest James, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Earnest James v. United States Postal Service
01A10179
March 28, 2001
.
Earnest James,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10179
Agency No. 4-C-1873-93
DECISION
By letter dated February 4, 2000, complainant argued that the
agency failed to investigate or issue a final decision for Agency
No. 4-C-1873-93. According to complainant, he asked the agency
several times about the case. By letter dated November 30, 1999, the
agency informed complainant that the matter had been dismissed �for
investigation� in a June 8, 1993 decision. But the record does not
contain a copy of such dismissal.
On July 20, 2000, complainant wrote a second letter to the Commission,
requesting that an appeal be opened concerning the agency's failure to
investigate or issue a decision on Agency No. 4-C-1873-93. The Commission
docketed complainant's request in the present appeal.
In response to the appeal, the agency now argues that the issues from
Agency No. 4-C-1873-93 were addressed in Agency No. 4-C-1344-93.
The agency notes that Agency No. 4-C-1344-93 was heard by an EEOC
Administrative Judge (AJ), and eventually appealed to the Commission in
EEOC Appeal No. 01950321.<1>
In his formal complaint and Counselor's Report for Agency No. 4-C-1873-93,
complainant argues that he was supervised by lower-graded personnel,
and frequently transferred among supervisors in order to prevent him from
receiving a merit evaluation.<2> According to complainant, he may receive
merit increases only after a merit evaluation, and such evaluations are
only performed on employees who have worked for the same supervisor for
a certain length of time.
The record contains a letter from the agency dated June 8, 1993.
This letter informed complainant that three EEO complaints, Agency
Nos. 4-C-1285-93, 4-C-1363-93, and 4-C-1873-93, were being consolidated
into a single complaint for investigation. The letter further stated
that the consolidated case would proceed as Agency No. 4-C-1285-93.
In a separate notice, also dated June 8, 1993, the agency informed
complainant that the matters raised in Agency No. 4-C-1285-93 were being
accepted for investigation. The accepted matters concerned complainant's
reassignment to lower positions and harassment occurring on December 24,
1992, February 1, 1993, and March 29, 1993.<3>
The record also contains a notice of acceptance for Agency
No. 4-C-1344-93, concerning complainant being denied higher-level
positions on December 24, 1992 and January 19, 1993. The agency's
September 15, 1994 final decision and the Commission's subsequent appeal
decision entail the same claims outlined in the Notice of Acceptance
for Agency No. 4-C-1344-93.<4>
The Commission finds the agency's response is tantamount to a dismissal
of consolidated Agency No. 4-C-1285-93 for stating the same claim raised
in Agency No. 4-C-1344-93. The agency may dismiss complaints that raise
the same matters pending or decided in prior complaints. See 29 C.F.R. �
1614.107(a)(1). The claims from Agency No. 4-C- 1873-93, accepted for
investigation as Agency No. 4-C-1285-93, are not identical to any claims
raised in 4-C-1344-93. The Commission notes that the agency provided
no evidence that the claims have been adjudicated elsewhere, and has
provided inconsistent explanations of the case's status. Therefore,
these claims should not have been dismissed. The Commission notes that
its decision is limited to whether the present claims involve the same
matters raised in 4-C-1344-93. The Commission declines to address whether
these matters have been raised in other complaints, or in other forums.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the claims are
REMANDED for further investigation.
ORDER
The agency is ordered to determine the status of the claims accepted
as Agency No. 4-C-1285-93. If it finds that the claims have been
disposed of, then it may issue a new dismissal provided grounds for
such dismissal exist under EEOC Regulations. If it finds that the
claims have been investigated, and a Report of Investigation completed
without any decision being issued, then it must provide complainant with
a copy of the report, and notify him of his rights to a hearing before
an EEOC Administrative Judge, or an immediate final decision. If the
agency finds no investigation has been completed, then the agency must
perform an investigation on the merits of the remanded claims within 60
days of the date this decision becomes final. The agency must issue its
dismissal, or provide complainant with a copy of the investigative file
within 60 days of the date this decision becomes final.
A copy of the agency's new dismissal or letter transmitting the
investigative file to complainant must be provided to the Compliance
Officer as indicated below.
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
March 28, 2001
__________________
Date
1The Commission affirmed a finding of no
discrimination for Agency No. 4-C-1344-93.
2Complainant contends he was transferred nine times during a twelve
month span of 1992-1993.
3Complainant was detailed to EAS-15 and 17 positions, with saved-pay at
the EAS-23 level, pursuant to a Merit Systems Protection Board settlement
agreement. Complainant later received a demotion without saved-pay,
which is the subject of a separate complaint in Agency No. 4-C-2503-93,
currently pending in EEOC Appeal No. 01A10843.
4The agency's decision for 4-C-1344-93 notes that the complaint was
consolidated with Agency No. 4-C-1356-93 for purposes of investigation.
That agency decision makes no mention of the present matter.