0120110514
03-31-2011
Arthur J. Ramel, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Arthur J. Ramel,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120110514
Agency No. 4F-956-0095-10
DECISION
Complainant filed an appeal with this Commission from an Agency decision, dated September 20, 2010, dismissing a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. 1614.405.
BACKGROUND
During the relevant time, Complainant worked as a Letter Carrier at the Agency's Processing & Distribution Center facility in Sacramento, California. Believing that he was subjected to discrimination based on his race, age, disability and prior EEO activity, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful.
On August 31, 2010, Complainant filed the instant formal complaint. Therein, Complainant raised the following claim:
On March 1, 2010, he was instructed to return to Fort Sutter Post Office because the Collections Unit at the Sacramento P & DC no longer had work available to accommodate his medical restrictions.
In its September 20, 2010 decision, the Agency dismissed the formal complaint on the grounds that it raises the same claim that is pending before or has been decided by the Agency. Specifically, the Agency found that the identical claim was raised in Agency Case No. 4F-956-0061-10, which was settled on April 22, 20101.
The Agency found that in the informal complaint for the instant case, Complainant explained that during the April 22, 2010 mediation, it was agreed that if medical documentation was provided based on the duties of a collections person, there would be work available in the collections unit. Complainant alleged, however, that after he provided the documentation, the Manager of Collections was purportedly unaware of his restrictions and thought he could not perform the job. Instead of reassigning him to the collections unit, on May 17, 2010, the Manager of Fort Sutter stated that there was no work available for Complainant. According to the Agency, these events were not included in the formal complaint. Therefore, the Agency found that the matter was considered abandoned and could not be resurrected.2
CONTENTIONS ON APPEAL
Complainant presents no contentions on appeal. The Agency requests that we affirm its dismissal.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
The record shows that in his formal complaint, Complainant alleged that on March 1, 2010 he was instructed to return to Fort Sutter because they were unable to accommodate his medical restrictions. The record also contains a pre-complaint form for Case No. 4F-956-0061-10 raising the same issue. Consequently, the Commission finds that the agency's dismissal pursuant to 29 C.F.R. 1614.107(a)(1) was proper.
Finally, Complainant does not dispute the Agency's claim that in his formal complaint, he decided to abandon issues which were raised in the counseling stage. As the Agency correctly noted in its dismissal decision, the Commission has held that where a Complainant raises a matter during counseling, but does not later include it in the formal complaint, it is considered, under most circumstances, to have been abandoned. See Williams v. Department of the Navy, EEOC Appeal No. 0120055162 (October 17, 2007) ("a complainant who received counseling on an allegation, but does not go forward with a formal complaint on that allegation is deemed to have abandoned it." Davis v. United States Postal Service, EEOC Appeal No. 01A61515 (July 19, 2006); Small v. United States Postal Service, EEOC Request No. 05980289 (July 16, 1999)). Accordingly, the Commission will not address the issues Complainant abandoned in his formal complaint.
CONCLUSION
Accordingly, the Agency's decision to dismiss the complaint was proper and is hereby AFFIRMED.
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 (S0610)
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. 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 (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
March 31, 2011
__________________
Date
1 According to the Agency, the settlement agreement required Complainant to provide updated medical documentation clarifying his medical condition to the Manager of Fort Sutter by April 30, 2010. Upon receipt, the manager would review the documents and make every effort to find available work.
2 To the extent that Complainant was alleging breach of a settlement, the Agency informed Complainant of the process set forth in 29 C.F.R. 1614.504(a).
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0120110514
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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