01990099
04-10-2001
Daniel T. Barker, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Daniel T. Barker v. United States Postal Service
01990099
April 10, 2001
.
Daniel T. Barker,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01990099
Agency No. 4A-117-0074-98
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to 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. 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 March 11, 1998, complainant contacted the EEO office regarding
claims of discrimination based on disability and in reprisal for prior
protected activity. Informal efforts to resolve complainant's concerns
were unsuccessful. On May 12, 1998, complainant filed a formal complaint.
In its decision, the agency framed the claims as follows:
In the fall of 1997, (a) complainant's requests for sick and annual
leave were denied, (b) complainant's doctor's orders were disregarded,
(c) complainant was threatened with removal from the agency, and (d)
management refused to discuss complainant's Fitness for Duty evaluation
with him;
(2) On February 19, 1998, complainant received a letter from the
Manager, Human Resources, denying him the right to appeal his 1997 merit
evaluation; and
(3) On March 2, 1998, complainant was informed that his position as
Postmaster in Bohemia had been posted as a vacancy.
In its September 1, 1998 decision, the agency dismissed the complaint.
Specifically, the agency dismissed claim (1)(a) for stating the same
claim that is pending before the agency. According to the agency,
complainant previously requested counseling, on October 20, 1997, and one
of the matters raised was the inability to use sick leave on October 20,
1997. The agency found the claim to be the same as claim (1)(a) in the
instant complaint.
Claims (1)(b), (1)(c), (1)(d) and (2) were dismissed for untimely
counselor contact. The agency determined that if claims (1)(b),
(1)(c) and (1)(d) occurred in �the fall of 1997", the most recent date
of alleged discrimination purportedly occurred at the end of fall, on
or about December 20, 1997, thereby making the March 11, 1998 contact
beyond the time limit. Regarding claim (2), the agency found that
complainant was aware of the evaluation on October 27, 1997, and was
also notified in letters dated December 15, 1997 and January 5, 1998,
that he was not entitled to receive merit performance compensation.
Finally, claim (3) was dismissed for failure to state a claim. The agency
noted that during the time of the posting complainant was in a leave
without pay status (LWOP) and failed to indicate what harm he suffered
as a result of the posting.
On appeal, complainant contends, with respect to claim (2), that he tried
to resolve the matter through internal channels. Moreover, he argues
that until March 2, 1998, he did not have all the facts and was not
certain that he was being discriminated against. Regarding claim (3),
complainant asserts that he was on paid leave status, rather than LWOP.
He argues that he was harmed in that since 1979, he held the �prestigious
position of Postmaster�, but following his injury and absence on sick
leave the Postmaster position was posted and a new Postmaster named.
Upon his return to work, complainant was �shipped off to the Ronkonkoma
Post Office on another mindless detail....�
In response, the agency argues with regard to claim (2), that complainant
tried to resolve the merit evaluation matter through internal channels
and, when he did not receive the response he wanted, he then contacted
the EEO office. The agency reiterates that complainant was aware of
the evaluation on October 27, 1997, and therefore his Counselor contact
was untimely. With respect to claim (3), the agency acknowledges that
complainant's leave was incorrectly identified as LWOP, but maintains
that complainant has failed to establish what harm or loss he suffered
as a result of the incident.
Claim (1)(a)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission. Here,
the agency dismissed claim (1)(a) on the grounds that it states the same
claim that has been investigated by the agency and is awaiting a hearing
(Case No. 4A-117-0021-98).
We note that although the agency contends that complainant has previously
raised the leave matter, it has failed to provide evidence in support of
its conclusion. The record does not contain a copy of the prior complaint
or Counselor's Report, nor any other documentation showing that the denial
of sick and annual leave in the fall of 1997, is currently being addressed
by the agency. In the absence of this evidence, we find that the record
is insufficient to determine that claim (1)(a) states the same claim that
is presently before the agency. Clearly, it is the burden of the agency
to have evidence or proof to support its final decision. See Marshall
v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Claim (3)
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 only proper question in determining whether a claim is within the
purview of the EEO process are (1) whether the complainant is an aggrieved
employee and (2) whether he has alleged employment discrimination covered
by the EEO statutes. An employee is �aggrieved� if he has suffered
direct and personal deprivation at the hands of the employer. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
In the instant case, complainant claims that when he returned from
sick leave, his position as Postmaster in Bohemia had been posted as a
vacancy and he was assigned �mindless� details at a different post office.
Complainant's claims are sufficient to render him an aggrieved employee.
Because he has alleged that the adverse action was based on disability
and in reprisal for prior protected activity, he has raised claims within
the purview of the EEO regulations.
The Commission notes the agency's argument that while complainant was on
leave, a request was made to have the position posted because complainant
had not performed the duties since June 27, 1996; that complainant's OWCP
benefits terminated in September 1997, and since that time complainant
had not indicated that he was ready, willing and able to resume his
duties; and that because it seemed unlikely that he would return,
the Human Resources office agreed to the posting with the stipulation
that if complainant returned he would be placed in a comparable EAS-20
Postmaster position. We find that the agency's determination that
the posting was justified goes to the merits of the complaint, and is
irrelevant to the procedural issue of whether he has stated a justiciable
claim under the regulations. See Ferrazzoli v. U.S. Postal Service,
EEOC Request No. 05910642 (August 15, 1991). Therefore, the dismissal
of claim (3) was improper.
Claims (1)(b), (1)(c), (1)(d), and (2)
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 has also held that the time requirement for contacting
an EEO Counselor can be waived as to certain claims within a complaint
when the complainant alleges a continuing violation, that is, a series
of related discriminatory acts, one of which falls within the time period
for contacting an EEO Counselor. Moreover, evidence showing complainant
had or should have had a reasonable suspicion of discrimination more
than forty-five days prior to initiating EEO Counselor contact will not
preclude acceptance of the overall claim of ongoing discrimination. See
Howard-Grayson v. United States Postal Service, EEOC Request No. 05990160
(December 3, 1999)(citing Ferguson v. Department of Justice, EEOC Request
No. 05970792 (March 30, 1999); Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 30, 1994)). If one or more acts falls
within the time period for contacting an EEO Counselor, the complaint
is timely with regard to all that constitute a continuing violation,
provided the acts are interrelated by a common nexus. See Meaney,
supra; Verkennes v. Department of Defense, EEOC Request No. 05900700
(September 21, 1990).
With respect to claims (1)(b), (1)(c), and (1)(d) the agency determined
that although the events occurred in the �fall of 1997", complainant
waited until March 11, 1998 to contact the EEO office. Similarly, in
claim (2), the agency asserted that complainant was notified on October
27, 1997, of his rating for the Merit Performance Evaluation, and again
in letters dated December 15, 1997 and January 5, 1998. Therefore,
according to the agency, complainant's contact regarding the four claims
was well beyond the forty-five-day time limitation.
After a review of the record, the Commission finds that the complainant's
timely claims, discussed above and identified as claims (1) and (3), are
clearly interrelated to claims (1)(b), (1)(c), (1)(d), and (2), which
fell outside the forty-five-day time limit. In the formal complaint,
complainant asserts that the most recent event (claim (3)) �is the latest
in a continuous effort by management of the L.I. District to discriminate
against me.� He notes that in hindsight he realized that all the alleged
events were part of an effort by the agency to discriminate against him,
and we agree. Thus, the Commission finds that complainant established a
continuing violation, and his EEO Counselor contact with regard to claims
(1)(b), (1)(c), (1)(d), and (2) was timely. See Howard-Grayson v. United
States Postal Service, EEOC Request No. 05990160 (December 3, 1999).
Accordingly, the agency's decision to dismiss the 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
April 10, 2001
__________________
Date