05a00395
06-21-2000
Leslie J. McCollins, Jr., Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Leslie J. McCollins, Jr. v. United States Postal Service
05A00395
June 21, 2000
Leslie J. McCollins, Jr., )
Complainant, ) Request No. 05A00395
) Appeal No. 01974491
) Agency No. 1H375100196
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
Leslie J. McCollins, Jr. (complainant) initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Leslie J. McCollins, Jr. v. United States Postal Service,
EEOC Appeal No. 01974491 (February 1, 2000).<1> EEOC Regulations provide
that the Commission may, in its discretion, reconsider any previous
Commission decision where the requesting party demonstrates 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. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.405(b)).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. In so finding,
we note that complainant did not attempt to demonstrate that the previous
decision's determination that he failed to establish a prima facie case of
reprisal discrimination was erroneous or that it will have a substantial
impact on the policies, practices, or operations of the agency.
Instead, complainant focused on his sex discrimination allegation.
We note, however, that the previous decision correctly remanded the
sex discrimination allegation for a supplemental investigation. The
decision in EEOC Appeal No. 01974491 therefore remains the Commission's
final decision. The agency shall comply with the Order issued in the
previous decision, as restated below. <2> There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
ORDER
The agency is ORDERED to conduct a supplemental investigation which
shall include the following actions:
1. The agency shall ensure that the investigator obtains personnel
records on the female co-worker with whom complainant had an altercation
on December 5, 1995 (C1), which indicate her position, supervisor and any
disciplinary actions which have been taken against her for altercations
in the workplace, verbal threats or similar behavior.
2. The agency shall ensure that the investigator obtains an affidavit
from C1. This affidavit shall provide information concerning what
happened during the altercation, including how it began and what C1 did
and said to complainant.
3. The agency shall ensure that the investigator obtains affidavits
from any witnesses to the altercation between complainant and C1.
These witnesses will include the "other employees" whom the agency says
observed the incident on page 5 of the FAD. These witnesses will be
asked to explain what they saw, including whether either complainant,
C1, or both, made threatening remarks or acted in a way that could be
described as rude, disruptive, abusive and/or intimidating.
4. The agency shall ensure that the investigator obtains supplemental
affidavits from S1 and the Plant Manager (PM). In these affidavits,
S1 and PM will explain why they disciplined complainant, but failed to
discipline C1, and/or investigate complainant's allegation that he was
verbally threatened. S1's supplemental affidavit should also respond
to complainant's allegation that S1's statement that complainant had
been disciplined for similar behavior in the past was incorrect in that,
as S1 knew, complainant was exonerated.
5. The agency shall ensure that the investigator obtains documentary
evidence of the agency's claim that complainant had "a history of loud,
verbal use of combative language whenever [he] did not agree with a
situation". The investigator should also obtain documentary evidence
concerning any previous discipline complainant received for similar
behavior.
The supplemental investigation will be completed and a copy will be sent
to complainant within ninety (90) calendar days of the date this decision
becomes final. 29 C.F.R. � 1614.108(e). Thereafter, the agency shall
issue a final agency decision within sixty (60) calendar days. A copy
of the agency's notice transmitting the investigative file to complainant
must be submitted 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (Q0400)
This decision affirms the agency's final decision 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 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:
June 21, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2Complainant appears to allege in his submissions that he intended
to raise race as an additional basis for his complaint. If this is
the case, we note that a complainant may amend his or her complaint to
add another statutory basis for an alleged discriminatory occurrence
without changing the identity of the claim. Dragos v. United States
Postal Service, EEOC Request No. 05940563. Complainant may therefore
inform the investigator that he wishes to add race as a basis for his
complaint at the time of the supplemental investigation.