Derek Boxdell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 16, 2003
01A33563_r (E.E.O.C. Dec. 16, 2003)

01A33563_r

12-16-2003

Derek Boxdell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Derek Boxdell v. United States Postal Service

01A33563

December 16, 2003

.

Derek Boxdell,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A33563

Agency No. 1F-941-0024-03

DECISION

Complainant filed an appeal with this Commission from an April 25,

2003 agency decision, dismissing his complaint pursuant to 29 C.F.R. �

1614.107(a)(7) for failure to cooperate. In his complaint, complainant

alleged that he was subjected to discrimination on the basis of race when

on October 29, 2002, he was placed in off-duty status without pay, had

his paychecks withheld, and was denied union representation to complain

about the discrimination.

In dismissing the complaint, the agency stated complainant received

two written requests from the EEO investigator, asking that he provide

an affidavit answering specific questions regarding his complaint and

submitting supporting documentation. The agency stated that complainant

failed to respond to the requests.

As an initial matter, the Commission finds that complainant's allegation

that he was denied union representation is more properly considered in

terms of whether the allegation states a claim. In this regard, the

Commission finds that the allegation fails to state a claim, pursuant

to 29 C.F.R. � 1614.107(a)(1). See Simensen v. United States Postal

Service, EEOC Appeal No. 01A21068 (February 26, 2002); Limparis v. United

States Postal Service, EEOC Appeal No. 01A00968 (April 17, 2000).

The proper forum for complainant to have raised this concern would have

been in a grievance proceeding, rather than through the EEO process.

Complainant has failed to show how this incident adversely affected

a term, condition, or privilege of his employment which is within the

jurisdiction of the Commission to remedy. See Diaz v. Department of

the Air Force, EEOC Request No. 05931049 (April 21, 1994). Therefore,

we find that the claim regarding the denial of union representation is

properly dismissed for failure to state a claim.

EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides for the dismissal of

a complaint where the agency has provided the complainant with a written

request to provide relevant information or otherwise proceed with the

complaint, and the complainant has failed to respond to the request

within 15 days of its receipt, provided that the request included a

notice of the proposed dismissal. The regulation further provides that,

instead of dismissing for failure to cooperate, the complaint may be

adjudicated if sufficient information for that purpose is available.

A review of the record reveals that on February 14, 2003, and March

11, 2003, complainant received two letters from the EEO investigator

requesting information regarding his complaint. Both letters informed

complainant that if he failed to respond to the request within 15 days of

his receipt of the letter, his complaint could be subject to dismissal.

Also contained in the record is a March 21, 2003 letter from complainant's

representative to the EEO office. The March 21, 2003 letter informed the

EEO office that complainant was off work as a result of a work injury and

that he would respond to any request for an affidavit upon complainant's

return to duty which was expected to be in two weeks. By facsimile,

dated April 10, 2003, complainant's representative informed the EEO

office that complainant had returned to work and that his affidavit

would be drafted in the next few days. The record also contains a May

3, 2003 letter which reflects that complainant's affidavit was sent by

facsimile and first class mail by complainant's representative to the

EEO office on April 16, 2003. Complainant's EEO Investigative Affidavit,

dated April 15, 2003, is included in the record.

Complainant's completed EEO Investigative Affidavit indicates that

it was sent by fax on April 16, 2003. The agency has not rebutted

complainant's claim on appeal that he submitted the affidavit by fax on

April 16, 2003. Given that the agency has not specifically challenged

complainant's evidence that he responded to the agency's request for

information prior to the issuance of the dismissal, we find that under

the circumstances of this case we can not find that complainant failed

to cooperate. Therefore, the agency's dismissal of complainant's claims

of being placed in off duty status without pay and having his paycheck

denied was improper.

The agency's dismissal of complainant's claim that he was denied union

representation is AFFIRMED. The agency's dismissal of complainant's

claims of being placed in off duty status without pay and having his

paycheck denied is REVERSED and these claims are REMANDED to the agency

for further processing in accordance with the applicable regulations

and the Order below.

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

December 16, 2003

__________________

Date