01A42187_r
06-15-2004
Carmine Crispino, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carmine Crispino v. United States Postal Service
01A42187
June 15, 2004
.
Carmine Crispino,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42187
Agency No. 4A-110-0005-04
DECISION
Complainant initiated contact with an EEO Counselor on October 15, 2003.
On November 25, 2003, complainant filed a formal EEO complaint wherein
he claimed that he was discriminated against on the basis of reprisal
when on October 10, 2003, he was notified that he would remain at the
agency's Port Washington, New York facility rather than be transferred
to the agency's New Hyde Park, New York facility.
By final action dated January 13, 2004, the agency dismissed the
complaint. The agency interpreted the complaint as also claiming
that complainant had not received his paycheck on October 10, 2003.
The agency dismissed that claim pursuant to 29 C.F.R. �1614.107(a)(5),
on the grounds of mootness, and the claim concerning the transfer pursuant
to 29 C.F.R. �1614.107(a)(1) on the grounds of failure to state a claim.
The agency observed with regard to the paycheck claim that complainant
stated to the Dispute Resolution Specialist on November 17, 2003,
that the paycheck issue had been resolved. As for the transfer, the
agency determined that the claim constituted a collateral attack on a
grievance decision. Thereafter, complainant filed the instant appeal.
In response, the agency asserts that complainant has provided no argument
disputing his statement to the Dispute Resolution Specialist that the
paycheck issue has been resolved. The agency further states that there
is no reasonable expectation that the alleged violation will recur.
With respect to the transfer claim, the agency reiterates its position
that the claim is a collateral attack of a grievance decision.
We find that the matter concerning complainant not receiving a paycheck on
October 10, 2003, was not raised as a claim in the complaint. Therefore,
this issue need not be addressed in this decision. As for the claim
concerning complainant's transfer, the record reveals that complainant
is seeking a transfer from the agency's Port Washington facility to its
New Hyde Park facility. The agency interprets complainant's complaint
as alleging that the agency's action regarding the transfer request
violated the grievance decision. The Commission finds, however, that
complainant is not making such a claim that the agency's action violated
a grievance decision. Complainant, instead, is claiming that the agency
discriminatorily failed to transfer him to the agency's New Hyde Park,
New York facility.
Accordingly, the agency's decision dismissing this complaint on the
grounds of failure to state a claim was improper and is REVERSED.<1>
This complaint is hereby REMANDED for further processing pursuant to
the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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
June 15, 2004
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1We note that the agency asserts in its response that complainant
has no prior EEO activity to support his claim of reprisal. However,
the agency final action did not cite this factor in its dismissal for
failure to state a claim. Therefore, we will not address this specific
argument set forth in the agency's response.