01986835
07-14-2000
Lamar W. Sessoms, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lamar W. Sessoms, Jr. v. United States Postal Service
01986835
July 14, 2000
Lamar W. Sessoms, Jr., )
Complainant, )
) Appeal Nos. 01986835
v. ) 01986836
) 01986885
William J. Henderson, ) Agency Nos. 1-K-221-0082-97
Postmaster General, ) 1-K-221-0067-97
United States Postal Service, ) 1-K-221-0063-97
Agency. )
)
DECISION
The complainant timely filed appeals with this Commission from two
final decisions, dated August 11, 1998, and from one final decision
dated August 28, 1998, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107.<1> The Commission accepts the appeal
in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. �1614.405). The Commission consolidates the appeals for
decision pursuant to 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
as 29 C.F.R. �1614.606).
The August 11, 1998 final agency decisions dismissed claims 1, 2, 4, and
11 of agency complaint number 1-K-221-0082-97 and claims 2, 5, 6, and 8
of agency complaint number 1-K-221-0063-97 for failure to state a claim
of employment discrimination, citing the Commission's prior decision in
Sessoms v. United States Postal Service, EEOC Appeal Nos. 01973440 et
al (June 11, 1998), request for reconsideration pending, EEOC Request
No. 05980973. The August 28, 1998 final agency decision dismissed claim
6 of agency complaint number 1-K-221-0067-97 for failure to cooperate.
In the cited Commission decision, the Commission affirmed the dismissal of
more than 150 of the complainant's claims for abuse of process, including
claims that the agency had denied schedule changes which the complainant
allegedly needed to perform EEO representational duties. However, the
Commission remanded two claims for further processing, including claim 6
of agency complaint number 1-K-221-0067-97. The Commission instructed the
agency to consolidate claim 6 of agency complaint number 1-K-221-0067-97
with claims 1 and 4 of agency complaint number 1-K-221-0082-97 and claims
5 and 6 of agency complaint number 1-K-221-0063-97 because those claims
concern the alleged retaliatory denial of leave requested under the
Family Medical Leave Act (FMLA).
The Commission finds that the agency failed to comply with the
Commission's instructions to consolidate the complainant's FMLA
related claims. The Commission also finds that these claims state a
claim regarding a term, condition, or privilege of employment, i.e, the
right to approved leave under the FMLA in appropriate circumstances.
The Commission further finds that the agency improperly requested
compensatory damages information from the complainant regarding
only a portion of his FMLA leave claim (claim 6 of complaint number
1-K-221-0067-97) . For these reasons, the Commission reverses the
dismissal of claim 6 of agency complaint number 1-K-221-0067-97; claims
1 and 4 of agency complaint number 1-K-221-0082-97; and claims 5 and 6
of agency complaint number 1-K-221-0063-97, and remands the FMLA leave
claim for investigation.
The Commission finds that the agency properly dismissed claims 2 and
11 of agency complaint number 1-K-221-0082-97, and claims 2 and 8 of
agency complaint number 1-K-221-0063-97, for failure to state a claim of
employment discrimination. These claims pertain to denials of official
time or schedule changes allegedly needed for the processing of EEO
complaints where the complainant represented other employees. Such claims
must be raised by the complainants whom the complainant represented.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of claims 2 and 11 of agency complaint number 1-K-221-0082-97
and claims 2 and 8 of agency complaint number 1-K-221-0063-97;
REVERSES the agency's dismissal of claim 6 of agency complaint
number 1-K-221-0067-97, claims 1 and 4 of agency complaint number
1-K-221-0082-97, and claims 5 and 6 of agency complaint number
1-K-221-0063-97; and REMANDS the complainant's FMLA claim and related
factual claims to the agency for processing as ORDERED below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.108). The agency shall acknowledge to the
complainant that it has received the remanded claims within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to the complainant a copy of the investigative file and also shall
notify the 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 the complainant's
request.
A copy of the agency's letter of acknowledgment to the complainant and
an 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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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:
July 14, 2000
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 and the agency on:
________ _____________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1On 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.