Robert L. Spencer, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity CommissionJan 13, 2012
0120112703 (E.E.O.C. Jan. 13, 2012)

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