01a53452
07-22-2005
Randall A. Ware v. United States Postal Service
01A53452
July 22, 2005
.
Randall A. Ware,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53452
Agency No. 4-C-440-0063-05
DECISION
The complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated March 9, 2005, 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. In his complaint, the complainant claimed that he was
subjected to discrimination based on his race/color (African-American)
when effective January 8, 2005 he was reassigned from the job of garageman
in the vehicle maintenance craft to carrier, rather than being permitted
to remain in his garageman position, be reassigned to a permanent job in
the vehicle maintenance craft, or be detailed therein with a guarantee
this would lead to permanently remaining in the vehicle maintenance craft.
The FAD characterized the complaint as alleging the complainant's bid
award to garageman was rescinded, but the proper definition of the
complaint is recited in the above paragraph.
The record reflects that the complainant, who was a carrier (city), bid
on and was awarded the job of garageman, and was placed therein effective
November 27, 2004. A co-worker filed a grievance, and pursuant to a
grievance settlement, was placed in the complainant's garageman position
effective January 8, 2005. According to the agency, the grievant was
entitled to preference over the complainant because the grievant was in
vehicle maintenance or �MVO� craft. After the grievance settlement the
complainant was offered a temporary detail to the vehicle maintenance
craft, but declined because he wanted to permanently stay therein.
The complainant was reassigned to his prior carrier job in the carrier
craft. The FAD dismissed the complaint for failure to state a claim.
It reasoned that the complaint constitutes a collateral attack on the
grievance process, and the proper forum to raise his claim is in the
grievance process.
On appeal, the complainant reiterates his claim that he was discriminated
against when he was reassigned out of the vehicle maintenance craft.
The complainant also contends that after returning to his carrier job, he
was denied his uniform allowance, and his pay checks were lost, resulting
in delayed payment. In response to the complainant �s appeal, the agency
argues that the FAD properly dismissed the complainant's complaint.
It also argues that the complainant's claims regarding what occurred
after he returned to his carrier job were raised for the first time on
appeal and should not be considered.
As an initial matter, we find that the complainant's claims about
what occurred after he returned to his carrier job were not part of
his complaint and were raised for the first time on appeal. Since the
appeal process is not the place to raise new claims for the first time,
we will not consider them here.
The FAD improperly dismissed the complainant's complaint for failure
to state a claim. The complainant was reassigned out of his garageman
job. Further, when he was reassigned, it was to a job outside the
vehicle maintenance craft, where he wished to stay. 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 complainant's complaint states a harm for which he
is aggrieved.
Regarding collateral attack, the complainant was not a party in
the grievance process or grievance settlement which resulted in the
reassignment. The grievance settlement contained no language about the
complainant, nor any specifically requiring that he be returned to his
carrier job. The agency's argument that it rescinded the complainant's
bid award because of the grievance settlement regards the merits of why
this occurred, not whether the complainant's complaint states a claim.
Also, the complainant's claim is broader than being reassigned out of
his garageman position. It also includes not being reassigned to another
position within the vehicle maintenance craft, rather than being returned
to his carrier job.
On appeal, the agency also characterized the complainant's claim as a
generalized grievance. We disagree. His claim regards his specific
reassignment.
The FAD's definition of the complainant's claim is modified, and its
dismissal of his complaint is reversed. The agency shall comply with
the order below.
ORDER
The agency is ordered to process the remanded claims in accordance
with 29 C.F.R. � 1614.108. The remanded claims are whether the
complainant was subjected to discrimination based on his race/color
(African-American) when effective January 8, 2005 he was reassigned from
the job of garageman in the vehicle maintenance craft to carrier, rather
than being permitted to remain in his garageman position, be reassigned
to a permanent job in the vehicle maintenance craft, or be detailed
therein with a guarantee this would lead to permanently remaining in
the vehicle maintenance craft. 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
July 22, 2005
__________________
Date