0120103773
02-08-2011
Alexander Myers, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Alexander Myers,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120103773
Agency No. 1J-607-0032-10
DECISION
By Notice of Appeal postmarked September 13, 2010, Complainant filed an
appeal with this Commission from the July 28, 2010 final Agency decision
(FAD) concerning his EEO 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
BACKGROUND
During the period at issue, Complainant was a MEO Truck Driver at the
Agency's Cardiss Collins Processing and Distribution Center in Chicago,
Illinois.
On July 14, 2010, Complainant filed the instant formal complaint. Therein,
Complainant alleged that he was discriminated against on the basis of
reprisal for prior EEO activity when, in May/June 2010, he was removed
from his driver position and became an unassigned regular and could not
find out why.
According to the EEO counselor's report associated with his complaint,
Complainant did not understand how or why he became an unassigned regular,
and wanted "to discuss the matter with someone who could explain it
to him." He asserted that the reassignment occurred in retaliation for
his prior EEO activity. The counselor's report further reflects that
according to a Human Resources (HR) representative, Complainant became an
unassigned regular due to being unsuccessful in his bidding on posting
earlier that month. The HR representative stated that in accordance
with Article 12.3.B11, Complainant was given a list of residual vacancies
from which to choose.
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).
In dismissing the complaint, the Commission finds that the Agency
has addressed the merits of Complainant's complaint without a proper
investigation as required by the regulations. We find that the Agency's
articulated reason for the action in dispute, i.e., that Complainant
was unsuccessful in bidding on his position, goes to the merits of
Complainant's complaint, and is irrelevant to the procedural issue of
whether he has stated a justiciable claim under Title VII. See Osborne
v. Department of the Treasury, EEOC Request No. 05960111 (July 19,
1996); Lee v. United States Postal Service, EEOC Request No. 05930220
(August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC
Request No. 05910642 (August 15, 1991).
The Agency's final decision dismissing the formal complaint for failure
to state a claim is REVERSED and the complaint is REMANDED to the Agency
for further processing in accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claim (Complainant's lose
of his driver position and placement in an unassigned regular position)
in accordance with 29 C.F.R. � 1614.108 et seq. 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.
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 (November 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 8, 2011
__________________
Date
1 We find that the Agency has not proven its claim that this appeal was
untimely filed.
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0120103773
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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