01A04167
01-29-2001
Richard A. Buckner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Richard A. Buckner v. United States Postal Service
01A04167
January 29, 2001
.
Richard A. Buckner,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04167
Agency No. 1-I-642-0009-00
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).<1>
Complainant claimed that he had been discriminated against on the bases
of reprisal and age when:
(1) on December 30, 1999, he was told to clean up a spill; and
(2) on January 7, 2000, he was threatened with discipline.
The agency dismissed the complaint for failure to state a claim.
The agency also dismissed claim 2 on the alternative grounds that it
claimed that a proposed action was discriminatory.
On appeal, complainant contends that a letter of warning was placed in
his personnel file and that he had been threatened with a suspension.
Moreover, he claims that the agency's �Bulk Mail Center handles hazardous
materials� and therefore, he should not have been asked to clean up the
spill in question.
A review of the record persuades the Commission that claim 1 was
improperly dismissed. The only proper questions 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). Here, complainant claimed
that he was improperly given the assignment of cleaning up a spill of
hazardous materials. Complainant's claim is sufficient to render him an
aggrieved employee. Because complainant has alleged that the adverse
action was based on age and reprisal, he has raised a claim within
the purview of the EEOC regulations. The agency's decision to dismiss
claim 1 is REVERSED, and claim 1 is REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
Regarding claim 2, complainant states on appeal that in conjunction
with a threat of disciplinary action, he was informed that a letter
of warning was placed in his personnel file. However, the Commission
has previously held that a complainant's speculation that records were
kept, without support thereof, is insufficient to render the individual
aggrieved for purposes of the EEOC Regulations. See Pruneda v. USPS,
EEOC Request No. 05950736 (October 31, 1996). Accordingly, the agency's
decision to dismiss claim 2 for failure to state a claim was proper and
is AFFIRMED. Because we affirm the dismissal of claim 2 for the reason
stated herein, we find it unnecessary to address the agency's alternative
grounds for dismissal.
ORDER (E0900)
The agency is ordered to process the remanded claim (claim 1) 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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
January 29, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.