0120073517
12-14-2007
Robert M. Roberson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert M. Roberson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073517
Agency No. 1H-301-0030-07
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated June 18, 2007, dismissing 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
The FAD defined complainant's complaint as alleging that he was subjected
to discrimination based on race (black), religion (unspecified), and
disability (foot, shoulder, elbow) when on February 7, 2007, he received
a PS Form 50, Notification of Personnel Action, changing his LDC form
6700 to 1400 retroactive to October 1, 2005 and listing his pay location
as 335.
The FAD dismissed the complaint for failure 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 FAD found that complainant was not harmed by the changes in the SF-50.
It noted that in his complaint complainant contended he should be working
on Tour 3 rather than Tour 1 (night time shift), but complainant had
worked on Tour 1 for many years, and the administrative changes in the
SF-50 did not change that. We agree that the claim, as defined by the
agency, fails to state a claim because the administrative codes did not
change complainant's working conditions or actual assignment.
Complainant contends that pay location 335 is Tour 3. He told the EEO
counselor that when he received the SF-50 with the pay location of 335,
rather than report at his normal Tour 1 starting time he reported to work
at 5:30 PM, but was not allowed work and was told to return at Tour 1.
Complainant worked on Tour 3 prior to an injury in 1997, and contends that
over the years he asked to return to Tour 3, to no avail. He contended
that he needed to take medication at night which was inconsistent with
working the night hours of Tour 1, but it is not clear if this is still
the case. He avers that in 2002 and 2003 he asked to be moved to tour
3 as a reasonable accommodation, but does not indicate whether he asked
for an accommodation thereafter.
We find that complainant is also alleging that he was discriminated
against based on his race, religion and disability when he was
not reassigned to Tour 3. The FAD dismissed this claim by omission.
There is insufficient information in the record to investigate this claim.
We cannot discern from the record whether this claim involves a request
for reasonable accommodation, nor the starting date point for this claim.
On remand, the agency shall process this claim in accordance with 29
C.F.R. Part 1614.
ORDER
The agency is ordered to process complainant's claim that he was
discriminated against based on race (black), religion, and disability
when he was not reassigned to Tour 3. The agency shall acknowledge to
the complainant that it has received the remanded claim within thirty
(30) calendar days of the date this decision becomes final. Thereafter,
the agency shall work with complainant to more precisely identify his
claim, i.e., the identity of his religion, which disabilities he is
raising, whether his claim involves denial of a request for reasonable
accommodation of a disability, and the starting date point of his
denial of reassignment claim. The agency shall then process the claim
in accordance with 29 C.F.R. Part 1614.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(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 (M0701)
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
December 14, 2007
__________________
Date
2
0120073517
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120073517