01a60258_r
03-28-2006
Antonio Sanchez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Antonio Sanchez v. United States Postal Service
01A60258
March 28, 2006
.
Antonio Sanchez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60258
Agency No. 4F-926-0211-05
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision, dated September 19, 2005, regarding his formal EEO 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.;
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On June 6, 2005, complainant initiated contact with an agency EEO office.
Complainant claimed that he was discriminated against when:
(1) on January 4, 2004, and continuing, he was denied reasonable
accommodations;
(2) On an unspecified date, the agency committed perjury in �prior
EEOs;�
(3) On unspecified dates, the agency terminated Hispanic males; and,
(4) On an unspecified date, the Post Office did not accept his medical
restrictions.
Informal efforts to resolve complainant's concerns were unsuccessful.
On July 19, 2005, complainant filed a formal complaint, claiming that
he was the victim of unlawful employment discrimination on the bases of
race, color, sex, age, disability and in reprisal for prior protected
activity.
On October 4, 2005, the agency issued the final decision that is the
subject of the instant appeal. Therein, the agency dismissed the formal
complaint in its entirety on the grounds of untimely EEO Counselor
contact.
The agency also dismissed claim (2) on the alternative grounds of
failure to state a claim. The agency found that a claim regarding the
processing of a previously filed complaint does not state an independent
claim of discrimination. Moreover, regarding claim (3), the agency noted
that complainant was terminated on September 3, 2004 and his removal is
the subject of previously accepted complaint that is pending a hearing
before an Administrative Judge (Case No. #4F-926-0135-04).
Complainant presents no new contentions on appeal.<1>
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that the agency has not provided a sufficient basis
for concluding that complainant's EEO Counselor contact was untimely.
While the record shows that complainant's contact occurred on June 6,
2005, the agency has not established when the alleged events occurred.
As noted in the agency's decision, the alleged date for claim (1) is
�January 4, 2004 and continuing� (emphasis added) and the remaining
claims occurred on �unspecified dates.� We find that the agency has
not met its burden of proving timeliness. See Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992).
As noted above, the agency also dismissed claims (2) and (3) on
alternative grounds. The Commission agrees that claim (2) alleges
dissatisfaction with the processing of a previously filed complaint.
Therefore, it is properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(8).
In claim (3), complainant alleges that the agency terminates Hispanic
males. To the extent that complainant claims that he suffered an
individualized specific harm, i.e. his own removal from agency employment,
we find that the matter was previously raised in an earlier complaint.
The Commission acknowledges that the record does not contain a copy
of the complaint for Case No. 4F-926-0135-04. However, complainant
acknowledges on appeal that the prior complaint concerns his removal.
Therefore, the Commission agrees with the agency that claim (3) is
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). Moreover,
to the extent that claim (3) concerns other Hispanic males, we find
that complainant cannot pursue a generalized grievance that members
of one protected group are afforded benefits not offered to other
protected groups. See Warth v. Seldin, 422 U.S. 490, 499 (1975);
Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508
(September 11, 1997) (claim that nurse practitioners in one unit received
more favorable treatment than nurse practitioners in other units was a
generalized grievance); Rodriguez v. Department of the Treasury, EEOC
Appeal No. 01970736 (August 28, 1997) (claim that there was an imbalance
in favoring of African-Americans, against Hispanics, in development and
promotion opportunities was a generalized grievance purportedly shared
by all Hispanic co-workers and therefore failed to state a claim).
Finally, we note that the agency states that complainant lacks standing
to file a formal complaint because he is no longer an employee with
the agency. The Commission disagrees. Although the agency indicates
that complainant was terminated in September 2004, his claims concerns
events that occurred during his employment with the agency.
Accordingly, the agency's decision to dismiss claims (2) and (3) was
proper and is hereby AFFIRMED for the reasons stated herein. However,
the agency's decision to dismiss claims (1) and (4) on the grounds of
untimely EEO Counselor contact was improper, and is REVERSED. Claims (1)
and (4) are 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 (claims (1) and (4))
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
March 28, 2006
__________________
Date
1The Commission notes that in his appeal form complainant makes reference
to both the instant case as well as to a case under a separate agency
number: Case No. 4F-926-0135-04. As noted above, the agency stated
that Case No. 4F-926-0135-04 is awaiting a hearing, and this assertion
is corroborated on appeal by complainant The Commission notes the
instant complaint is not Case No. 4F-926-0135-04 and does not concern
the September 3, 2004 termination.