01985154
12-03-1999
Edward J. Simpkins, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Edward J. Simpkins, )
Complainant, )
)
v. ) Appeal No. 01985154
) Agency No. H0-0155-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency's June 8, 1998 decision improperly
dismissed Complainant's complaint for failure to state a claim.<1>
The record shows that Complainant, a former employee of the agency,
filed a formal complaint of discrimination alleging that he had been
discriminated against on the basis of reprisal when he received a letter
from a collection agency for a postal debt which had already been paid in
full. Complainant further alleged that he continued to receive �harassing
bill collection statements for over a year, for a debt that had already
been paid� even though the agency was allegedly aware of the fact that it
had been paid. Finally, Complainant claimed that he was aggrieved because
even though the debt had been paid, he was reported to the credit bureaus.
The agency issued a final decision dismissing the complaint on the
grounds of failure to state a claim.
The record shows that Complainant claims that for a period of one year the
agency harassed him by sending him bills for a debt that he had already
paid. Complainant further claims that although the agency was aware
that the debt in question had been paid in full, it continued to bill
him in order to subject him to harassment. Complainant also claims that
he was aggrieved because the agency reported him to the credit bureaus.
The agency improperly dismissed the complaint. The only questions for
the agency to consider are whether the complaint alleges employment
discrimination on a basis covered by EEO statutes and if Complainant
is aggrieved. If the answer to these questions is yes, then the agency
must accept the complaint for processing, regardless of what it thought
of the merits. Odoski v. Department of Energy, EEOC Appeal No. 01901496
(April 16, 1990).
Moreover, the Commission has held that former employees have standing
to file EEO complaints. See Sternberg v. Department of Defense
Dependents Schools, EEOC Request No. 05890976 (January 9, 1990).
Commission precedent is consistent with Federal court cases which have
held that a strict and narrow interpretation of the word �employee
to exclude former employees would undercut the remedial purposes of
the discrimination statutes which are to furnish a remedy against an
employer's use of discrimination in connection with a prospective,
present or past relationship.� Pantchenko v. C.B. Dodge Co., 581 F. 2d
1052, 1055 (2d Cir. 1978). The Commission has further held that �former
employees frequently have standing to challenge agency actions that
presently affect them and for which remedial action would be available
if they prevailed on their complaints.� Laborde v. USPS., EEOC Request
No. 05910521 (July 25, 1991).
Accordingly, the dismissal of Complainant's complaint was improper.
The final agency decision is hereby REVERSED. The complaint is REMANDED
for further processing in accordance with this decision and applicable
regulations.
ORDER (E1092)
The agency is ORDERED to process the complaint in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to the Complainant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant 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 Complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of Complainant's request.
A copy of the agency's letter of acknowledgment to Complainant 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
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:
December 3, 1999
DATE Carlton M. Hadden, Acting
Director
Office of Federal
Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________
__________________________________
DATE EQUAL EMPLOYMENT ASSISTANT 1 On 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.