01980918
10-19-1998
Reginald E. Beaton, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Reginald E. Beaton, )
Appellant, )
)
)
v. ) Appeal No. 01980918
) Agency No. 4H-350-0254-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On November 10, 1997, the Commission received appellant's timely appeal
from a final agency decision (FAD) received by him on October 11, 1997,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq. The agency characterized appellant's complaint
as alleging that he was subjected to discrimination on the basis of race
(Black) when:
On July 10, 1997, appellant was made aware that management was in the
process of eliminating Transitional Employee ("TE") carrier positions
in the Auburn, Georgia post office.
A review of the record, however, reveals that appellant also alleged
that he was subjected to discrimination on the basis of race (Black) when:
A white TE carrier was given better and/or more opportunities to take
the postal exam than was appellant.
The agency dismissed allegation (1) pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim. Specifically, the
agency determined that appellant did not show that he suffered any harm
to the terms, conditions, or privileges of his employment because he was
not yet affected by the proposed elimination of the TE carrier positions.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may
dismiss a complaint which fails to state a claim pursuant to 29
C.F.R. �1614.103. For employees and applicants for employment,
EEOC Regulation 29 C.F.R. �1614.103 provides that individual and
class complaints of employment discrimination prohibited by Title
VII (discrimination on the bases of race, color, religion, sex, and
national origin), the ADEA (discrimination on the basis of age when the
aggrieved individual is at least 40 years of age), the Rehabilitation
Act (discrimination on the basis of disability), and the Equal Pay Act
(sex-based wage discrimination) shall be processed in accordance with
part 1614 of the EEOC regulations. 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 (Apr. 21, 1994).
In the instant case, we find that appellant is not aggrieved as
a result of the proposed elimination of the TE carrier positions.
At this time, appellant has not suffered any tangible harm as a result
of this policy. If, in the future, appellant suffers harm with respect
to the terms, conditions, or privileges of his employment as a result
of the implementation of this policy, appellant is advised that he may
then seek EEO counseling on the matter. As yet, however, appellant is
not aggrieved.
The Commission notes that the agency failed to address appellant's
allegation concerning the disparate treatment he received concerning
the number of times and/or the conditions under which he was permitted
to take the postal exam, and the Commission deems the agency's action
to be tantamount to a dismissal of that matter. The record reveals
that the EEO Office was notified of the issue because the EEO Counselor
identified the issue in the Counselor's Report and appellant referenced
the matter in his formal complaint. Accordingly, the agency's dismissal
of allegation (2) was improper.
Accordingly, the agency's decision to dismiss allegation (1) was proper
and is AFFIRMED for the reasons set forth herein. The agency's decision
to dismiss allegation (2) was improper and is hereby REVERSED. Allegation
(2) is REMANDED to the agency for further processing in accordance with
this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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. 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 (Z1092)
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:
Oct. 19, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations