01982221
03-02-1999
Ronald B. Poole, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ronald B. Poole v. United States Postal Service
01982221
March 2, 1999
Ronald B. Poole, )
Appellant, )
)
v. ) Appeal No. 01982221
) Agency No. 4-H-327-0140-97
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., and the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. �621 et seq. Appellant received the final
agency decision on January 3, 1998. The appeal was postmarked January
19, 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 on the grounds that he failed to accept a certified offer of
full relief.
BACKGROUND
Appellant initiated contact with an EEO Counselor on March 6, 1997.
On April 11, 1997, appellant filed a formal EEO complaint wherein he
alleged that he was discriminated against on the bases of his race
(white), sex (male) and age (49) when of five employees who received
an investigative interview, he was the only employee issued a letter of
warning.
On October 6, 1997, the agency extended to appellant the following
settlement offer, which the agency subsequently certified as full relief.
The agency stated by letter dated November 3, 1997, that failure to accept
the offer within 30 days of its receipt would result in the dismissal
of the complaint. The offer provided that the letter of warning for
unsatisfactory performance dated February 15, 1997 was removed effective
March 28, 1997, and that no reprisal would result from the filing of
the complaint.
In its final decision dated December 29, 1997, the agency dismissed
the complaint on the grounds of failure to accept a certified offer of
full relief. The agency stated that although appellant received the
certified offer of full relief on November 10, 1997, appellant had not
responded to the offer.
On appeal, appellant argues that he has yet to receive an answer
as to why he was the only employee to receive a letter of warning.
Appellant acknowledges that the letter of warning was removed pursuant
to a grievance.
ANALYSIS AND FINDINGS
The decision to dismiss a complaint for failure to accept full relief
should be made by the agency when an appellant refuses to accept
an offer of full relief made in compliance with EEOC Regulation 29
C.F.R. �1614.107(h). Under the regulation, the agency must provide
written certification to the appellant that its offer constitutes full
relief and that failure to accept the offer within thirty days of its
receipt may result in dismissal of the complaint. When an appellant
refuses the offer, the agency may dismiss the complaint.
When an appellant appeals, objecting to the dismissal of a complaint under
the above provisions, the Commission will uphold the agency's dismissal
if 1) the certification and offer were properly made in accordance with
the regulation, and 2) the offer constitutes full relief given the facts
of the case.
In this case, the record shows that the certification was made by an
official authorized to certify that an offer constitutes full relief.
The certification accompanied the offer. Therefore, the agency's
offer satisfied the procedural requirements of a certified offer of
full relief.
Full relief must be evaluated in terms of whether it includes everything
to which the complainant would be entitled if a finding of discrimination
were entered with respect to all of the allegations in the complaint, See
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Merriell v. Department
of Transportation, EEOC Request No. 05890596 (August 10, 1989), and
it must be specifically tailored to cure the particular source of the
identified discrimination and minimize the chance of its recurrence.
In Albemarle, the Court held that the purpose of Title VII is to
make victims whole. 422 U.S. at 418-19. This requires eliminating
the particular unlawful employment practice complained of, as well as
restoring the victim to the position he or she would have occupied were
it not for the unlawful discrimination. Id. at 420-21.
Appellant alleged that he was subjected to discrimination when he was
issued a letter of warning. The agency's settlement offer indicated that
the letter of warning was removed from appellant's files. We find that
the agency's offer constituted full relief, i.e., all the relief to which
appellant would be entitled in the event he prevailed on his complaint.
Accordingly, the agency's dismissal of the complaint was proper and
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
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 (S0993)
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 2, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations