01992728_r
11-22-1999
Dwayne A. Sloan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dwayne A. Sloan, )
Complainant, )
)
v. ) Appeal No. 01992728
) Agency No. 1-G-771-0138-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On February 17, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
January 27, 1999, pertaining to his complaint of unlawful employment
discrimination in violation of �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. <1> In the complaint, he alleged that
he was subjected to discrimination on the basis of physical disability
when his request to transfer to the San Antonio Office was denied,
but was approved later the same day. Complainant also alleged that the
manager wrote a negative comment on the approval, with which complainant
did not agree.
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency found that complainant was not aggrieved because
his transfer request ultimately was approved. The agency also found
that complainant suffered no concrete harm from the negative comment on
the approved transfer form.
On appeal, complainant argues that although his transfer release from
his former duty station was �finally approved,� the transfer was not
accepted or approved by his destination office (San Antonio Office).
Further, complainant's appeal form indicates that he is currently living
in San Antonio, but is not employed with the agency -- complainant listed
a private business where he could be reached by phone at work.
The record includes a copy of complainant's disapproved transfer,
dated June 13, 1998. This document refuses to release complainant
for �transfer consideration� because of �unsatisfactory attendance.�
The record also contains the approval form, also dated June 13, 1998.
This approval releases complainant for �transfer consideration� by the
San Antonio office. At the bottom of the approval, a hand-written note
states, �I am not in agreement with approval . . . due to complainant's
ability to maintain attendance. . . .�
EEOC Regulations require dismissal of a complaint that fails to state
a claim. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at 29
C.F.R. �1614.107(a)(1)). 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.
See 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 (Apr. 22, 1994).
Complainant clearly was aggrieved when his transfer initially was
denied, even though he later was approved for transfer consideration.
Although complainant's old duty station released complainant for
transfer consideration to San Antonio, the record does not indicate
that complainant's transfer ultimately was completed. To the contrary,
complainant contends that the transfer was not accepted by the San Antonio
office, and it appears that complainant is not employed with the agency
in San Antonio. Further, the agency has provided no evidence that
the transfer was completed. Therefore, the agency's characterization
of complainant's claim is improper, and should include the following:
Complainant alleges that he was subjected to discrimination on the basis
of physical disability when the agency issued a release for transfer
consideration to San Antonio that included negative comments about
complainant, resulting in complainant's transfer ultimately not being
approved by the San Antonio office.
Once properly framed, the complaint alleges harm to a term, condition,
or privilege of employment, and thus, states a claim pursuant to 29
C.F.R. �1614.107(a)(1).
CONCLUSION
Accordingly, the agency's decision is REVERSED, and the complaint is
REMANDED for investigation.
ORDER
The agency is ORDERED to process the remanded claim as defined above in
accordance with 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29
C.F.R. �1614.108). The agency shall acknowledge to 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 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 22, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ date
__________________________
Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.