01a44819_r
11-16-2004
Stuart S. Deutsch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stuart S. Deutsch v. United States Postal Service
01A44819
November 16, 2004
.
Stuart S. Deutsch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44819
Agency No. 4A 110 0077 04
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated July 9, 2004, regarding 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 Commission accepts the appeal in accordance
with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office claiming that he was subjected to
discrimination based on disability and retaliation. In an Information
for Pre-Complaint Counseling form, complainant stated that:
On March 16, 2004, he was ordered to report to the basement at the
Flushing Post Office. The agency falsely told the Department of Labor
that he could return to work. The original job offer, of a �Lobby
Monitor� position, was abruptly rescinded without reason or warning.
No permanent rehabilitation assignment was ever made.
On March 22, 2004, at approximately 8:45 a.m., Supervisor [T] handed
him a letter in which management unilaterally deprived him of working on
his route assignment, taking away years of his legal bid of seven years.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant was issued a Notice of Right to File Individual
Complaint. In EEO Counselor's attached letter, dated May 27, 2004,
two additional issues were set forth:
On May 25, 2004, during a final interview telephone conversation,
complainant stated that, Supervisor [T] started rumors that complainant
was being fired from the job. In addition, complainant stated that
Supervisor [T] forced complainant at different times to go to the street
and other times, he was sent home.
Complainant was incorrectly paid by the Department of Labor due to
misinformation provided from the Postal Service Injury Compensation
Unit.
On June 4, 2004, complainant filed the instant formal complaint.
In its final decision, dated July 9, 2004, the agency determined that
the instant complaint was comprised of the following claims:
(1) from March through April 2004, complainant was subjected to
inadequate pay, loss of overtime opportunities, denied his bid assignment,
denied contractual rights and denied fair treatment; and,
(2) in the summer of 2000, in connection with an EEOC meeting, the
Postmaster agreed to remove complainant's supervisor. On an unspecified
date, the supervisor was returned.
The agency dismissed the instant complaint. Specifically, the agency
dismissed claim (1) for failure to state a claim. The agency found
that complainant did not provide specific incident dates, evidence or
testimony and therefore failed to present a statement �sufficiently
precise to identify the aggrieved individual and the agency and to
describe generally the actions that form the basis of the complaint� as
required by 29 C.F.R. � 1614.106(c).
Regarding claim (2), the agency found that complainant �may be alleging
a breach of a settlement agreement.� The agency indicated that because
that was a possibility, complainant needed to notify the Manager,
EEO Compliance and Appeals in writing. The agency dismissed claim (2)
on the grounds that it states the same claim that is pending before or
has been decided by the agency.
On appeal, complainant argues that on May 24, 2004, the agency rescinded
the job offer that complainant had accepted. Further, complainant
argues that the agency decided that complainant would work for the
agency only four hours a day, and the other four hours would be paid by
the Department of Labor. Complainant argues that from May 24, 2004,
to the present he has lost half of his pension plan contributions,
sick leave, and annual leave. Additionally, complainant contends that
�[m]y cases should be considered a breach of this settlement agreement.�
In response, regarding claim (1), the agency notes that �on appeal
[complainant] provides some dates and some information which should have
been provided along with his formal complaint.� Regarding claim (2),
the agency states that complainant �acknowledges that this allegation
should be considered a breach� and reiterates its instructions that he
pursue the matter through the breach process rather than through the
filing of a complaint.
As noted above, the agency dismissed a portion of the complaint for
failure to state a claim, finding that it lacked required details.
EEOC Regulations require that a complainant provide a statement that
is �sufficiently precise to identify the aggrieved individual and the
agency and to describe generally the actions or practice(s) that form
the basis of the complaint.� 29 C.F.R. � 1614.106(c). While the agency
determined in its final decision that complainant's claims lack precision,
a review of the record reveals additional details provided by complainant
that were not contemplated by the agency. Specifically, the agency's
identification of the claims raised in the instant complaint does not
correspond with the claims set forth by the EEO Counselor in his letter
of final interview or with complainant's statement on appeal. Further,
there is no evidence in the record that the agency sought clarification
from complainant.
Accordingly, the agency's decision to dismiss complainant's complaint
is hereby VACATED. The complaint is REMANDED to the agency for further
processing in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following action:
(1) Within fifteen (15) calendar days of the date that this decision
becomes final, the agency shall schedule in writing a meeting between
complainant and an EEO Counselor. The meeting shall provide complainant
with the opportunity to clarify the issues raised in his formal complaint
by identifying precise dates of alleged discrimination, as well as
precise agency actions of alleged discrimination. Further, in this
meeting, the agency shall provide complainant with the opportunity to
raise breach claims. If such breach claims are raised, they shall be
separately processed, pursuant to 29 C.F.R. � 1614.504.
(2) Within thirty (30) calendar days of the date that this decision
becomes final, the agency shall issue a notice of processing and/or new
final decision, specifically setting forth the disputed actions raised
therein.
A copy of the agency's notice to complainant of the opportunity to meet
with an EEO Counselor and a copy of the notice of processing and/or
new final decision 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
(R0900)
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 (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
November 16, 2004
__________________
Date