0120102093
08-19-2010
Dwain Cooke, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Dwain Cooke,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120102093
Agency No. 1F941003410
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 12, 2010, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
ISSUE PRESENTED
Whether the Agency correctly dismissed the complaint on the grounds that it failed to state a claim.
BACKGROUND
In a complaint dated March 23, 2010, Complainant alleged that the Agency subjected him to discrimination and harassment on the bases of disability and reprisal for prior protected EEO activity [under the Rehabilitation Act] when, on February 10, 2010 and March 6, 2010, he was interrupted during a union-related meeting.
DISMISSAL
The Agency dismissed the complaint, noting that matters concerning the negotiated grievance procedure do not state a claim within the EEOC's jurisdiction.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he did not receive adequate EEO counseling. Specifically, he stated: "The EEO Counselor has failed to attempt to resolve the problem informally on a timely matter. The Counselor also has failed to interview, review, help or question me on both of my EEO complaints filed on 02/1/2010 and 03/06/2010." Complainant also states that he has been subjected to ongoing discrimination based on his hearing disability, including "harassment, mistreatment, hostile environment, demeaning treatment, being yelled at and retaliation" at the hands of management. He also reiterates that he was harassed while he was engaging in protected union activity.
In its opposition brief, the Agency asserts that Complainant provided no basis on appeal, for the Commission to disturb the decision dismissing the complaint.
ANALYSIS
First, with respect to Complainant's dissatisfaction with the informal processing of his complaint, as raised on appeal, Complainant is advised to notify the Agency's EEO Manager in writing so that an inquiry can be conducted. The Agency is also reminded of its responsibility to provide EEO counseling pursuant to 29 C.F.R. � 1614.105.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in pertinent 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, �1614.106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffered 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).
A review of Complainant's complaint indicates that Complainant alleged he was pulled out of two union meetings by his Manager and told when and where he can engage in union activity. He indicated that other Stewards were not treated the same way because, unlike him, they are not disabled. The only proper questions in determining whether a claim is within the purview of the EEO process are: (1) whether the Complainant is an aggrieved employee; and (2) whether he or she has alleged employment discrimination covered by the EEO statutes. An employee is "aggrieved" if he or she has suffered a direct and personal deprivation at the hands of the employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990). Here, Complainant maintained that, because of his disability, he was treated differently by his supervisor regarding his ability to engage in union activity. Accordingly, we find that he is aggrieved and does state a claim.
CONCLUSION
Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and REMANDED in accordance with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (K0610)
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 77960, Washington, DC 20013. 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 (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
___8/19/10_______________
Date
2
0120102093
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102093