01A22424_r
09-19-2002
John M. Trujillo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John M. Trujillo v. United States Postal Service
01A22424
September 19, 2002
.
John M. Trujillo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22424
Agency No. 4E-870-0128-01
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
In a complaint dated October 12, 2001, complainant alleged that he was
subjected to ongoing discrimination on the bases of race (Hispanic),
national origin (Mexican American), disability, and in reprisal for prior
EEO activity when on June 25, 2001, his supervisor yelled at him and shook
his finger telling him that he not going to get a PS Form1571 needed in
order to curtail mail. Complainant alleged that the same agency officials
identified in his prior EEO complaints are retaliating against him by
excessively scrutinizing him by following on his route and harassing
him. Complainant also claimed that he is being bullied and coerced to
exceed his medical limitations which are due to an on the job injury
and when he objects he is degraded and these actions have resulted in
mental stress and aggravation of his disabilities.
On March 11, 2002, the agency dismissed the complaint for failure to
state a claim.
On appeal, complainant contends that ever since he filed his prior
complaints he is the victim of ongoing harassment by the same agency
officials.
EEOC Regulation 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. The
agency shall accept a complaint from any aggrieved employee or applicant
for employment who believes that he or she has been discriminated against
by the 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.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
Complainant alleges that he is the victim of ongoing retaliatory
harassment. The Commission record shows that complainant appealed an
earlier complaint. Therein, he also alleged harassment. On appeal, the
Commission reversed the agency's dismissal of this complaint, and remanded
it to the agency for further processing. See Trujillo v. United
States Postal Service, EEOC Appeal No. 01A13550 ( August 14, 2001).
In the present case the Commission finds that complainant has stated a
cognizable claim under the EEOC Regulations. The Commission finds that
the agency viewed complainant's claim individually, rather than as part
of an overall claim of harassment. Thus, in order to avoid fragmentation
of complainant's harassment claim, we find that the specific incidents
presented in the instant complaint should be consolidated with the earlier
events raised previously in the EEO complaint process. Accordingly, the
agency's final decision dismissing complainant's complaint is REVERSED
and the complaint is REMANDED for further processing as ordered below
ORDER
The agency is ordered to process the remanded claims in accordance with 29
C.F.R. � 1614.108. The agency shall, to the extent possible, consolidate
the instant complaint with the complainant's other pending harassment
complaint for continued processing. The agency shall acknowledge to the
complainant that it has received the remanded claims and consolidated
them, if appropriate, 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 and consolidation, if
appropriate, 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
September 19, 2002
__________________
Date