01A23521_r
03-26-2003
David L. Anderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David L. Anderson v. United States Postal Service
01A23521
March 26, 2003
.
David L. Anderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23521
Agency No. 1I-554-0004-02
DECISION
Complainant filed the instant appeal from the agency's final decision
dated May 13, 2002, dismissing his complaint of discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. In his complaint, complainant alleged that he was
subjected to discrimination on the bases of race, sex, age, disability,
and reprisal for prior EEO activity when:
On May 11, 2001, complainant was denied union time;
On May 18, 2001, complainant was issued a Letter of Suspension for
Absence Without Official Leave (AWOL);
In May 2001, complainant was followed to the bathroom by a supervisor;
On August 31, 2001, complainant was denied information regarding his
suspension;
Complainant's transfer request, dated August 13, 2001, was not approved;
No Blacks occupy positions in Labor Relations;
Complainant was forced to used sick leave.
In its final decision, the agency dismissed claims 1, 2, and 3, pursuant
to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact.
The agency found that complainant first sought EEO counseling on September
29, 2001, well beyond the 45-day time limit. The agency dismissed
claims 3, 4, 5, and 6, for failure to state a claim, pursuant to 29
C.F.R. � 1614.107(a)(1). Lastly, the agency dismissed claim 7 because
complainant raised this claim for the first time in his November 21, 2001
complaint and had not previously presented this claim for EEO counseling.
Claims 1, 2, and 3
The record discloses that the alleged discriminatory events described in
claims 1, 2, and 3, occurred in May 2001, but complainant did not initiate
contact with an EEO Counselor until September 29, 2001, which is beyond
the forty-five (45) day limitation period. On appeal, complainant has
presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact. Accordingly,
the agency's final decision dismissing claims 1, 2, and 3, is proper.
Claims 4 and 6
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).
We concur with the agency that claims 4 and 6 fail to state claims.
Complainant is not aggrieved by being denied information regarding his
suspension since he suffered no additional loss as a result, other
than the suspension itself, which occurred in May 2001. Similarly,
we find complainant is not aggrieved by the absence of Blacks in the
Labor Relations Office. Complainant does not claim he applied for
any particular position and was not selected, nor do agency records
indicate that any vacancies have been recently filled in the Labor
Relations Office.
Claim 5
The agency argues that because complainant's August 13, 2001 transfer
request has not been denied, complainant is not aggrieved and therefore
claim 5 does not state a claim. We find that since complainant's request
for a transfer to one of the agency's Mississippi facilities has not
been approved, complainant is aggrieved and this claim was therefore,
improperly dismissed.
Claim 7
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to
or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990).
We find sufficient evidence in the record to establish that claim 7 is
like or related to complainant's other claims presented for EEO counseling
prior to the filing of the complaint in November 2001. Complainant has
alleged a pattern of harassment regarding his use of leave, union time
and breaks. Accordingly, the agency's dismissal of claim 7 pursuant to
29 C.F.R. � 1614.107(a)(2) is improper.
In summary, we AFFIRM the agency's dismissal of claims 1, 2, 3, 4, and 6,
on the grounds stated herein. We REVERSE the agency's dismissal of claims
5 and 7 and REMAND claims 5 and 7 for processing as directed herein.
ORDER (E0900)
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 (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
March 26, 2003
__________________
Date