01A35149_r
02-25-2004
Adan Flores, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Adan Flores v. United States Postal Service
01A35149
February 25, 2004
.
Adan Flores,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A35149
Agency No. 4G-780-0030-03
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision dismissing his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.
Complainant contacted the EEO office claiming that he was retaliated
against when:
(1) On November 22, 2002, he was denied a request for a PS Form 50 to
be processed so that he could receive the Merit Evaluation for FY 2000
per letter dated December 4, 2000 from the District Manager; September
25, 2002, he became aware that his request for Personnel to process a
PS form 50 for his FY 2000 merit evaluation was denied.
(2) Request for payment of EVA Variable Pay Program Reserve Account
was denied.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, on February 22, 2003, complainant filed a formal complaint.
On August 8, 2003, the agency issued a final decision dismissing the
complaint. The agency found that its actions did not cause any concrete
effect on complainant's employment status and that the complaint failed
to state a claim. Further, the agency considered the complaint to be an
impermissible collateral attack on another proceeding. According to the
agency, the complaint raised matters that are inextricably intertwined
with claims raised in an appeal to the Merit Systems Protection Board
(MSPB). Finally, the agency dismissed the complaint for raising the same
claims that have been decided by the agency in Case No. 4G-780-0075-01.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The record contains a copy of the November 22, 2002 letter to complainant,
notifying him that he was no longer eligible for a merit payment and
that he was not entitled to the reserve balance on his EVA Variable Pay
Program account. We determine that the alleged incidents concern a
monetary loss and therefore complainant has alleged a personal harm to
a term, condition or privilege of his employment. Because complainant
claims that the alleged incidents were based on retaliation, he has
stated a claim of discrimination.
The agency also dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(4), finding that complainant already raised the issues
in an appeal to the MSPB. According to the agency, claims (1) and
(2) are inextricably intertwined with the matters raised in MSPB Case
No. DA-0752-010146-1-1. The record contains a copy of an MSPB Initial
Decision in MSPB Case No. DA-0752-01-0146-I-1. Therein, the MSPB noted
that complainant filed an appeal from an agency action which reduced
him in grade, effective November 18, 2000. The MSPB dismissed the
appeal without prejudice, pursuant to a joint request by the agency
and complainant because they were engaged in settlement discussions.
Nevertheless, the Commission determines that the agency failed to
substantiate the bases for the dismissal. See Marshall v. Department
of the Navy, EEOC Request No. 05910685 (September 6, 1991). The record
does not contain a copy of complainant's MSPB appeal, or any other
documentation reflecting that the matters raised in claims (1) and
(2) are inextricably intertwined with the matters raised in the above
referenced MSPB appeal. Consequently, the Commission is unable to
affirm the agency's dismissal on these grounds.
Finally, the agency determined that the instant complaint was identical
to a complaint filed on November 27, 2000 (Case No. 4G-780-0075-01).
The record reveals that the prior complaint involved a hostile work
environment claim wherein: (1) complainant received an October 11, 2000
proposal to reduce him in grade, and (2) complainant received an October
23, 2000 letter recommending that he be excluded from the EVA payment for
Fiscal Year 2000. It has long been established that �identical� does not
mean �similar.� The Commission has consistently held that in order for
a complaint to be dismissed as identical, the elements of the complaint
must be identical to the elements of the prior complaint in time, place,
incident and parties. See Jackson v. USPS, EEOC Appeal No. 01955890
(April 5, 1996). We do not find these claims to be identical to the
claims raised in the instant complaint, regarding merit payment and the
payment of the EVA account balance.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 a
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 25, 2004
__________________
Date