01992396
03-24-2000
James G. Gilmore, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James G. Gilmore, )
Complainant, )
)
v. ) Appeal No. 01992396
) Agency No. 4-G-720-0256-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's January 7, 1999 decision dismissing
the complaint on the bases that it raises the same matter already decided
by the agency or the Commission is not proper pursuant to the provisions
of 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.107(a)(1)).<1>
The record shows that Complainant sought EEO counseling on September
15, 1997, alleging that he had been discriminated against when: (1) on
August 22, 1997, he was given unacceptable light duty accommodations;
(2) the agency intentionally misrepresented facts on an official
government document; and, (3) the agency intentionally violated his
right to confidentiality.
Complainant subsequently filed a formal complaint alleging that he had
been discriminated against on the bases of race, color, sex, age, and
disability when on August 22, 1997, and January 12, 1998: (a) he was
provided with unacceptable accommodation; (b) fraudulent statements
were provided to the Labor Department; (c) the agency misrepresented
facts on official documents; and, (d) the agency violated rights to
confidentiality.
The agency issued a final decision dismissing the complaint on the
grounds that the claims raised therein had been already raised by
Complainant on Agency Case No. 4-G-720-0076-98, which resulted in a
settlement agreement. We note that the agency determined that the
instant complaint is comprised of only two issues: unacceptable light
duty accommodations and fraudulent statements provided to the Office of
Workers Compensation. Moreover, the final agency decision was silent
concerning the other two issues raised by Complainant in his formal
complaint: misrepresentation of facts on official documents and violation
of confidentiality. On appeal, Complainant contends that the only issue
resolved in the settlement agreement was the proposed removal.
A review of the record shows that on February 2, 1998, Complainant sought
EEO counseling in Agency Case No. 4-G-720-0076-98.
In his informal complaint Complainant alleged discrimination on the bases
of mental disability and age when on January 20, 1998, he was issued a
notice of proposed removal. No other issue was raised by Complainant
in his informal complaint. The record also includes a written narrative
provided by Complainant as part of a grievance he filed pursuant to the
collective bargaining agreement. Said narrative shows that Complainant
also raised the following issues: unacceptable accommodation of his
disability on August 22, 1997, and fraudulent documents provided to the
Labor Department. Finally, the record shows that Complainant's informal
complaint did not reach the formal stage of the administrative process
because the parties reached a settlement agreement on February 24, 1998,
which provided in relevant part that �the notice of proposed removal
... will be held in abeyance ... [and Complainant] will be offered a
temporary light duty assignment�.
A review of the record reflects that the claims raised in the instant
complaint were not raised in Agency Case No. 4-G-720-0076-98. The record
shows that the sole allegation raised by Complainant in Agency Case
No. 4-G-720-0076-98 was the proposed removal. Moreover, the issues
raised in Agency Case No. 4-G-720-0076-98 never reached the formal stage
of the administrative process, because a settlement agreement was reached
concerning the proposed removal and a temporary light duty assignment.
Nevertheless, the settlement was silent concerning the claims raised in
the instant complaint: unacceptable documentation, fraudulent documents,
confidentiality and misrepresentation of documents.
Therefore, the agency's decision to dismiss the instant complaint pursuant
to the provisions of 29 C.F.R. �1614.107(a) on the grounds that its issues
were already decided by the agency was improper and is hereby REVERSED.
The complaint, as defined by this decision, is REMANDED for further
processing in accordance with this decision and applicable regulations.
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 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 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 (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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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:
March 24, 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 after it was mailed. I certify
that this 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.