0120112703
01-13-2012
Robert L. Spencer, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Robert L. Spencer,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120112703
Agency No. 4K-200-0079-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
March 1, 2011 decision dismissing his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Letter Carrier at the Andrews Air Force Base in Andrews, Maryland.
On February 7, 2011, Complainant filed an EEO complaint alleging that the
Agency subjected him to discrimination in reprisal for prior protected
EEO activity when:
1. On January 7, 2011, he was assigned to the Suitland Post Office;
2. On unspecified dates he was harassed and subsequently issued a Letter
of Warning; and
3. On January 4, 2011, he was issued a Notice of Suspension.
On March 1, 2011, the Agency issued a final decision dismissing the
complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state
a claim. The Agency determined that in his formal complaint, Complainant
alleged that he was subjected to retaliation “as a result of the injury
[he] obtained on the job.” The Agency found that retaliation for an
on-the-job injury was not a proper basis and dismissed the complaint
for failure to state a claim.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he intended to allege disability as
the basis of discrimination in his complaint. Complainant argues that
the reassignment order was given to him shortly after he was injured on
the job and without the required 7-day notice. In addition, Complainant
alleges that he received the pre-disciplinary interview the same day
he received the letter of warning and suspension in violation of the
collective bargaining agreement. Accordingly, Complainant requests that
the Commission reverse the Agency’s dismissal.
ANALYSIS AND FINDINGS
The Commission has previously held that “[i]t is well established that
EEO charges are to be liberally construed to effectuate the purposes of
the discrimination statutes and the crucial role of the private litigant
in the statutory scheme.” Sanchez v. Standard Brands, Inc., 431 F.2d
455 (5th Cir. 1970); President v. Vance, 627 F.2d 353 (D.C. Cir. 1980)
(applying Sanchez principles to federal employees). The crucial element
in a charge of discrimination is the set of facts alleged therein, not
the complainant’s conclusions, concerning the Agency's motivation.
Mahood v. Dep’t of Def., EEOC Appeal No. 01941890 (May 2, 1994).
A fair reading of the record in its totality reflects that Complainant
alleged that he has been the victim of unlawful discrimination and
harassment on the basis of disability. Under the circumstances
of this case, the Commission finds that the Agency’s decision to
dismiss Complainant’s formal complaint was improper. Therefore,
the Commission REVERSES the final decision and REMANDS the complaint
for further processing in accordance with the ORDER below.
ORDER (E0610)
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 (K0610)
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 77960, Washington, DC
20013. 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 (M0610)
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), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________ January 13, 2012
Carlton M. Hadden, Director Date
Office of Federal Operations
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0120112703
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112703