Bobby Bellow, Appellant,
v.
Anthony M. Frank Postmaster General, United States Postal Service, Agency.

Request No. 
05890913
Appeal No. 01891358
Agency Nos. 2-2-0538-6;; 2-1-539-6;; 2-2-1450-6;; 2-2-1468-6;; 2-M-0064-7; 0067-7;2-M-0075-7; 0077-7;2-M-0101-88

November 27, 1989

DECISION ON REQUEST TO REOPEN

INTRODUCTION

On July 19, 1989, the United States Postal Service (hereinafter referred to as the agency) initiated a timely [FN1] request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Bobby Bellow v. Anthony M. Frank, Postmaster General, United States Postal Service, EEOC Appeal No. 01891358 (June 19, 1989). EEOC Regulations provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision. 29 C.F.R. 1613.235(a). The party requesting reopening must submit written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b). The agency appears to base its request on 29 C.F.R. 1613.235(b)(2) (the previous decision constitutes an erroneous interpretation of law or regulation or a misapplication of established policy). For the reasons set forth herein, the agency's request is granted in part and denied in part.

ISSUE PRESENTED

The issue presented herein is whether the Commission's prior decision correctly vacated the agency's rejection of certain of appellant's complaints on the grounds that appellant had filed a civil action and remanded the complaints for processing.

BACKGROUND

The case herein involves twelve complaints of discrimination on the bases of age (over 50), handicap (perceived as schizophrenic) and reprisal for EEO activity [FN2] in relation to appellant's efforts to obtain employment with the agency and his termination from two positions during 1985-86. The final agency decision (FAD), dated January 4, 1989, closed each of the twelve complaints on the grounds that appellant had filed a civil action in U.S. District Court which would be dispositive of the issues raised in the complaints. On appeal, this Commission affirmed the FAD in part and reversed in part, holding that appellant's civil action encompassed only two of his complaints (agency nos. 2-2-0538-6 and 2-1-0539-6 [FN3] ), which related to appellant's employment and termination in 1985, and that the remaining ten complaints, which dealt with subsequent events, were ripe for processing.

Appellant's civil action, alleging age and handicap discrimination and reprisal, was filed in the U.S. District Court for Southern West Virginia on September 16, 1988. Count I of the suit alleges that appellant applied for an agency position as a custodian on October 12, 1985, and was discriminated against when another person was selected on December 12, 1985. As a remedy for the alleged discrimination, appellant seeks reinstatement retroactive to the date of his application. Count II of appellant's civil action alleges that he was discriminated against when he was denied an interview for a position as a career letter carrier on August 26, 1985 and when he was terminated from a position as a casual (i.e., non-career) carrier on November 13, 1985. As a remedy, appellant seeks reinstatement retroactive to August 26, 1985. [FN4]

On request to reopen, the agency asserts that our previous decision erred in remanding nine of appellant's remaining ten complaints [FN5] . The agency argues that this Commission has previously affirmed the agency's cancellation of one of the nine complaints, that the allegations in two of the complaints are the same as the allegations in the first count of appellant's civil action and that the relief sought in the remaining six complaints is the same as the relief sought in the second count of the civil action.

Appellants argues in reply that his lawyer was not notified of the agency's request to reopen, that all of his cases but one is more than 180 days old, that he has not been given due process, that the agency has not submitted new evidence, and that the agency has not complied with EEOC Regulations regarding requests to reopen.

ANALYSIS AND FINDINGS

Agency Case No. 2-M-0075-7

The agency argues that our prior decision erred in remanding this complaint for processing, because the Commission previously affirmed the agency's rejection of the complaint as outside the purview of EEOC Regulations and appellant did not request reopening of that decision. A review of Commission records reveals that the agency's argument is correct. An appellate decision by this Commission affirming the rejection of agency case no. 2-M-0075-7 was issued on December 17, 1987. See EEOC Appeal No. 01871898. Appellant did not timely request reopening of that decision. Therefore, the agency's rejection of the complaint was final, and the Commission decision at issue herein erred in remanding the complaint for processing. However, we note that the agency also erred in unnecessarily closing the complaint in its January 4, 1989 FAD although its rejection of the complaint had been affirmed by this Commission more than one year before.

Agency Case Nos. 2-2-1450-6 and 2-M-0101-88

The agency argues that the allegations and relief sought in these complaints are identical to the allegations and relief sought in Count I of appellant's civil action. Count I of the civil action, as noted above, alleges that appellant was discriminatorily denied a position as a custodian on December 12, 1985.

A review of Commission records shows that we issued an appellate decision on December 8, 1988, see EEOC Appeal No. 01883176, in which we affirmed the agency's rejection of complaint no. 2-2-1450-6 stating that it was 'essentially identical' to complaint no. 2-2-0538-6. In the prior Commission decision that is the subject of this request to reopen, we held that case no. 2-2-0538-6 was superseded by appellant's civil action, and appellant has not requested reopening of that portion of our decision. Moreover, appellant did not timely request reopening of our decision in EEOC Appeal No. 01883176 (which affirmed the agency's previous rejection of complaint no. 2-2-1450-6). Accordingly, we find that our decision in that appeal is final and controlling. Therefore, the agency again erred in closing complaint no. 2-2-1450-6 unnecessarily in its January 4, 1989 FAD, and the prior Commission decision at issue herein erred in remanding it for processing.

In case no. 2-M-0101-8, appellant alleged that he was again discriminated against when someone else was tested for a position as custodian in March 1988. The record shows that in each of the complaints in which appellant has challenged his failure to be considered or hired as a custodian, i.e., case nos. 2-2-0538-6, 2-2-1450-6 and 2-M-0101-8, the agency has asserted that, as a matter of policy, custodial positions are open only to current agency employees. The Commission has previously affirmed the rejection of complaints challenging the application on repeated dates of a consistent agency policy, pursuant to EEOC Regulation at 29 C.F.R. 1613.215(a)(1) regarding the rejection of identical complaints. See Robert Wesley, Jr. v. United States Postal Service, EEOC Appeal No. 01872197 (September 30, 1987). The Commission finds that such a ruling, in order to prevent duplicative processing and possibly inconsistent determinations, is also appropriate herein. Accordingly, we find that, since appellant's complaint no. 2-M-0101-8 challenges the same agency policy as complaint nos. 2-2-1450-6 and 2-2-0538-6, and since the latter complaint is encompassed by appellant's civil action, the agency's FAD correctly closed complaint no. 2-M-0101-8 on the grounds that it also is encompassed by the civil action. Therefore, our prior decision erred in remanding complaint no. 2-M-0101-8 for processing.

Agency Case Nos. 2-M-0064-7 through 2-M-0067-7, 2-M-0076-7 and 2-M-0077-7

The agency argues that our prior decision erred in remanding these cases for processing because the relief sought by appellant is the same as in Count II of his civil action. As noted above, in Count II appellant seeks reinstatement as a letter carrier retroactive to August 26, 1985.

The record shows that in complaint nos. 2-M-0064-7 through 2-M-0067-7, appellant alleged that he was discriminatorily denied timely notification of his performance standards after being hired as a part-time flexible (PTF) letter carrier and that his subsequent 30-day and 60-day evaluations and his terminations on October 7, 1986 were discriminatory. In the complaint regarding his termination, appellant requests reinstatement as of August 26, 1985, the date on which the alleged he agency's pattern of discrimination began. Complaint nos. 2-M-0076-7 and 2-M-0077-7 are spinoff complaints alleging discrimination in processing of case Nos. 2-M-0064-7 through 2-M-0067-7.[FN6]

The agency's argument that its FAD correctly closed these administrative complaints, because one of the complaints seeks the same relief as in Count II of appellant's civil action, is wholly without merit. EEOC Regulations provide that an agency may cancel a complaint that is the basis of a pending civil action. 29 C.F.R. 1613.215(a)(3). The correct inquiry in determining whether to issue such a cancellation is not whether the requested remedies are the same, since (as the agency is surely aware) a complainant may request any remedy, even one which is inappropriate, and it is the responsibility of the adjudicator to determine the proper remedy in accordance with law and regulation. The correct inquiry in determining whether to cancel a complaint under 29 C.F.R. 1613.215(a)(3) is whether the issues of the complaint and the civil action, i.e., the acts of alleged discrimination, are the same. The allegations in appellant's civil action and in complaint nos. 2-M-0064-7 through 2-M-0067-7, 2-M-0076-7 and 2-M-0077-7 clearly address different acts of alleged discrimination. In this regard, Count II of the civil action challenges a termination from the position as a casual which occurred on November 13, 1985. The termination challenged in one of the administrative complaints involves the position of a PTF and occurred on October 7, 1986. Accordingly, we find that our prior decision correctly held that these complaints were not encompassed by appellant's civil action and therefore correctly remanded the complaints for processing.

CONCLUSION

After a careful review of the agency's request to reopen, appellant's reply thereto, our prior decision and the entire record, the Commission concludes that the agency's request in part meets and in part fails to meet the criteria of 29 C.F.R. 1613.235(b)(2), that our previous decision constitutes an erroneous interpretation of law or regulation or a misapplication of established policy. The request is therefore granted in part and denied in part. Our prior decision is hereby REVERSED insofar as it vacated the agency's cancellation of complaint nos. 2-M-0075-7, 2-2-1450-6 and 2-M-0101-88 and remanded those complaints for processing. Our prior decision is AFFIRMED insofar as it held that complaint nos. 2-2-1468-6, 2-M-0064-7 through 2-M-0067-7, 2-M-0076-7 and 2-M-0077-7 are not encompassed by appellant's civil action and remanded those complaints for processing pursuant to EEOC Regulations. The decision of the Commission on this request to reopen constitutes the Commission's final decision on the issues raised herein. There is no further right of administrative appeal from a decision of the Commission on a request to reopen. This decision, however, does not constitute a ruling on the merits of appellant's complaints.

IMPLEMENTATION OF THE COMMISSION DECISION

Under EEOC Regulations, compliance with the Commission's corrective action is mandatory. The agency must report completion of the corrective action to this Commission within sixty (60) calendar days of receipt of this decision. See 29 C.F.R. 1613.237(b) and (c), 52 Fed. Reg. 41928 (October 30, 1987). The agency's report should be forwarded to the Compliance Officer, Office of Review and Appeals, P.O. Box 19848, Washington, D.C. 20036. A copy of the report should be sent to the appellant.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST TO REOPEN

RIGHT TO FILE A CIVIL ACTION

You are hereby notified that there is no further right of appeal from a decision of the Commission on a Request to Reopen. You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) DAYS of the date that you receive this decision. As to any claim based on the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a), you MAY have up to six years after the right of action first accrued in which to file a civil action. See Lehman v. Nakshian, 453 U.S. 156 (1981); 29 U.S.C. 633a(f); and 28 U.S.C. 2401 (a). If you file a civil action, YOU MUST NAME THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD AS THE DEFENDANT IN THE COMPLAINT. Agency or department means the national organization, and not the local office, facility or department in which you might work. DO NOT JUST NAME THE AGENCY OR DEPARTMENT. You must also state the title of the official agency head or department head. Failure to provide the NAME AND OFFICIAL TITLE of the agency head or department head may result in the dismissal of your case. Fed. R. Civ. P. 25(d)(2).

APPOINTMENT OF COUNSEL

If you decide to file a civil action and do not have or cannot afford the services of an attorney, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., as amended, and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 791 and Sec. 794c, as amended, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the civil action without payment of fees, costs or security. Your request must be FILED WITH THE COURT WITHIN THIRTY (30) DAYS from the date that you receive the Commission's decision.

11/27/89 Date
 FOR THE COMMISSION: Frances M. Hart, Executive Officer, Executive Secretariat

[FN1]. Appellant argues, in response to the agency's request to reopen, that the request is untimely. EEOC Regulations at 29 C.F.R. 1613.235(b) require that a request to reopen be made within 30 days of receipt of an appellate decision by the Commission. The Commission's certified mail receipt shows that the agency received our prior decision on June 20, 1989. Its request to reopen was filed July 20, 1989, 30 days later. Therefore, the request to reopen was timely.

[FN2]. In this regard, we note that the FAD and our prior decision indicate that appellant's reprisal allegations was based on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. However, the record contains no evidence that appellant was involved in EEO activity based on his race, sex, religion or national origin, protected under Title VII. Instead the record indicates that appellant's complaints have alleged discrimination based on age and handicap. Therefore, his reprisal claims, like his substantive claims of discrimination, arise from the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. 621 et seq., and 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791.

[FN3]. Commission records show that we issued a decision on August 19, 1988 in EEOC appeal no. 01881474, in which we held that the agency's cancellation of case no. 2-2-0538-6 was improper because appellant had not, as the agency stated, refused an offer of full relief. We remanded this complaint to the agency for processing. Also in appeal no. 01881474, we affirmed the agency's determination in case no. 2-1-0539-6 that appellant was not subjected to discrimination. Appellant did not file a request to reopen our decision. Accordingly, the agency's cancellation of case no. 2-1-0539-6 in the January 4, 1989 FAD at issue herein was in error, because the case was already closed.

[FN4]. Appellant's civil action and administrative complaints also seek monetary damages for the alleged discrimination. Appellant is advised that such damages are not available under the Age Discrimination in Employment Act or the Rehabilitation Act.

[FN5]. The agency concedes that complaint no. 2-2-1468-6 was properly remanded because it is not encompassed by appellant's civil action. In this complaint, appellant alleges that he was discriminated against in that the agency mishandled his medical records in connection with a pre-employment examination in May 1986.

[FN6]. We note that the Commission has issued decisions remanding each of these cases twice before, in addition to the remand for processing in the decision that is the subject of this request to reopen. On September 9, 1987 and December 17, 1987, we issued appellate decisions finding that the agency incorrectly rejected case nos. 2-M-0076-7 and 2-M-0077-7 on the grounds that appellant was not aggrieved because he was not an employee of the agency, and we ordered the agency to process the cases as spinoff complaints. On September 19, 1988, we vacated a final agency decision in which the agency had both consolidated the spinoffs with their underlying complaints and simultaneously closed the spinoffs with a finding of no discrimination. See EEOC Appeal No. 01882117. We held that the agency's decision contained a fundamental contradiction and remanded the spinoffs for investigation and further processing. Id.