01A05645
01-05-2001
Michael K. Billings, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael K. Billings v. U.S. Postal Service
01A05645
January 5, 2001
.
Michael K. Billings,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05645
Agency No. 4-D-290-0036-00
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated August 2, 2000, dismissing his complaint of unlawful
employment discrimination brought under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
On February 9, 2000, complainant contacted an EEO Counselor regarding
non-selection for a position at the Georgetown, North Carolina,
Post Office. Complainant contended that the Postmaster at this
facility treated him rudely and refused to hire him as �retaliation� for
complainant submitting his application through the Human Resource office
instead of directly to the Postmaster. As bases, the EEO Counselor's
report reflects �retaliation� (for prior EEO activity) and �race�
(unspecified). When EEO counseling did not resolve complainant's
concerns, he filed a formal complaint on March 11, 2000, identifying
only retaliation as a basis of his complaint.
In a letter dated March 21, 2000, the agency notified complainant that
it accepted the complaint for investigation, and framed the claim as
based only on retaliation. This notice further indicated that because
the record did not show that complainant had prior EEO activity, the
agency reserved the right to dismiss the complaint.
The agency then conducted an investigation and determined that complainant
had no prior EEO activity. Consequently, the agency issued its decision
dismissing the complaint for failure to state a claim.
On appeal, complainant requests that the complaint be reinstated on
the basis of race, noting that he had initially raised this basis, but
that his attorney improperly failed to include �race� as a basis on his
complaint form.
The Commission acknowledges that �race� (unspecified) is checked off on
the EEO Counselor's report. However, the Commission determines that
complainant fails to otherwise mention race as a basis throughout the
entire record before us. Review of the EEO Counselor's report reveals
that it only concerns complainant's �retaliation� claim, and that the
formal complaint only sets forth retaliation as a basis. Although
complainant argues that his attorney erred in completing the complaint
form, we note that complainant signed the complaint form and could have
changed it to include race as a basis prior to filing, but did not do so.
Moreover, by letter of March 11, 2000, the agency notified complainant
that the claim accepted for investigation was based only on retaliation,
yet complainant did not contact the agency to ask that the complaint
be amended to include the basis of race. Furthermore, review of the
affidavits provided by complainant to the investigator show that they
fail to make any mention of race discrimination.
The Commission has held that raising a new basis does not constitute a
new claim when the underlying facts surrounding the complaint remain the
same. See Buergi v. Department of the Treasury, EEOC Appeal No. 01951239
(September 6, 1995). To allow complainant to raise a basis not presented
to the agency at some point prior to its final determination would thwart
the investigative process. Absent a compelling reason, a complainant
may not add a new basis on appeal. Wodjak v. Department of the Treasury,
EEOC Appeal No.01952440 (March 27, 1997).
In this case, complainant has presented no such reason. While �race� is
checked off on the EEO Counselor's report, it is designated �unspecified,�
and the record is devoid of any other reference to race discrimination.
Moreover, we find that complainant had adequate notice that race was
not included as basis in his complaint, yet he made no attempt to
have the agency include it. Therefore, even if it could be said that
complainant raised race as a basis during EEO counseling, we find that
he failed to pursue race as a basis in his complaint. Accordingly, we
AFFIRM the agency's DISMISSAL for failure to state a claim. 29 C.F.R. �
1614.107(a)(1)
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 (S0900)
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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 5, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.