01981968
03-05-1999
Leonard Jelks, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Leonard Jelks, Jr. v. United States Postal Service
01981968
March 5, 1999
Leonard Jelks, Jr., )
Appellant, )
)
v. ) Appeal No. 01981968
) Agency No. 1-G-771-0117-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was received by
appellant on December 27, 1997. The appeal was postmarked January 6,
1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for stating the same claim that is pending before the agency.
BACKGROUND
Appellant contacted an EEO counselor on July 3, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when on July 2, 1997 a new seniority roster
was posted and back dated to May 12, 1997, thereby changing appellant's
position on the roster. Informal efforts to resolve appellant's concerns
were unsuccessful. Accordingly, on August 14, 1997, appellant filed a
formal complaint alleging that he was the victim of unlawful employment
discrimination on the basis of race (black).
On October 8, 1997, the agency issued a final decision dismissing
appellant's complaint on the grounds that it stated the same claim pending
before the agency. Specifically, the agency determined that the July 2,
1997 seniority list issue was the subject of complaint No. 4-G-770-0554-97
previously filed by appellant.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to state a
claim under 29 C.F.R. �1614.103 or 29 C.F.R. �1614.106(a) or states the
same claim that is pending before or has been decided by the agency or
Commission.
In the instant case, the agency contends that the dismissed complaint
addresses the same issue that was raised in a prior complaint filed
by appellant. However, the agency fails to provide the Commission with
a copy of said former complaint. The Commission is unable to make an
independent determination as to whether complaint No. 4-G-770-0554-97
indeed states the same claim as that raised by appellant in the complaint
which is the subject of this appeal. Without evidence to support its
decision to dismiss, the Commission must remand the complaint to the
agency for supplementation of the record.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint
pursuant to 29 C.F.R. �1614.107(a) is VACATED. The Complaint is REMANDED
for supplementation of the record in accordance with the Order below.
ORDER
The agency shall supplement the record with a copy of appellant's prior
complaint No. 4-G-770-0554-97, and the counselor's report issued in
connection with the complaint. If a counselor's report was not issued in
connection with appellant's prior complaint, the agency shall specifically
state so, and provide information on when the appellant contacted an EEO
counselor, and what he discussed with the counselor. The agency shall
copy the above supplementation to the appellant. Thereafter, the agency
shall issue a new final decision accepting or dismissing appellant's
complaint. The agency shall complete the above actions within sixty (60)
calendar days after this decision becomes final.
A copy of the agency's notice that transmits the supplementation of the
record to the appellant, as well as the agency's letter of decision
accepting or dismissing appellant's complaint shall be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a
timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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:
Mar 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations