Robert Garza, Jr., Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 29, 2001
01A10529 (E.E.O.C. Jan. 29, 2001)

01A10529

01-29-2001

Robert Garza, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Robert Garza, Jr. v. United States Postal Service

01A10529

January 29, 2001

.

Robert Garza, Jr.,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A10529

Agency No. 4G-780-0235-00

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision, dated September 18, 2000, 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.<1>

The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.

On March 22, 2000, complainant contacted the EEO office regarding claims

of harassment based on reprisal and sex. Specifically, complainant

believed he was discriminated against when on March 8, 2000 he was given

an office check or proficiency check �for the umpteenth time� in the

last eight years. Informal efforts to resolve complainant's concerns

were unsuccessful. Subsequently, complainant filed a formal complaint.

The agency dismissed the complaint for failure to state a claim.

The agency noted that complainant indicated �mix motive� as the basis

on his complaint form. Moreover, the agency noted that during EEO

counseling, complainant also cited retaliation for being a union steward.

The agency determined that the two bases cited by complainant did not fall

under EEOC statutes and therefore the complaint failed to state a claim.

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 Commission notes that the two bases cited by complainant in

his complaint form and in pre-complaint counseling (�mix motive� and

retaliation for being a union steward), do not fall under the statutes

enforced by the Commission. We note that with respect to the alleged

reprisal, complainant refers to his position as a union steward rather

than a protected EEO related activity. Consequently, the Commission

finds that complainant has failed to state a claim in that �mix motive�

and retaliation for being a union steward are not within the purview of

EEO law.

On appeal, however, complainant argues that he amended his complaint

to include sex as a basis. The record contains evidence supporting

this assertion. Specifically, the record contains a copy of a letter,

dated August 11, 2000, from complainant to the EEO office indicating that

his failure to include sex as a basis was an oversight. Complainant

clearly stated that his discrimination complaint is based on sex and

�mixed motive�. A complainant may amend his complaint to add another

statutory basis for an alleged discriminatory occurrence at any time

prior to appeal, without changing the identity of the claim. See Dragos

v. United States Postal Service, EEOC Request No. 05940563 (January 19,

1995). Further, the request for pre-complaint counseling and Counselor's

Report reflect that complainant raised sex as a basis with the EEO office.

The amended complaint alleges an adverse action based on sex. Moreover,

the matter raised in the formal complaint identifies a loss or harm

regarding a term, condition, or privilege of complainant's employment.

Complainant's complaint therefore raises a claim within the purview

of the EEOC regulations. See Hobson v. Department of the Navy, EEOC

Request No. 05891133 (March 2, 1990).

The agency's decision to dismiss complainant's complaint based on

�mixed motive� and retaliation for being a union steward was proper

and is hereby AFFIRMED. The dismissal of the complaint based on sex

is REVERSED. The complaint based on sex 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 (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.