Ezzard C. Gist, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.

Equal Employment Opportunity CommissionMar 16, 2005
01a51375 (E.E.O.C. Mar. 16, 2005)

01a51375

03-16-2005

Ezzard C. Gist, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.


Ezzard C. Gist v. United States Postal Service

01A51375

March 16, 2005

.

Ezzard C. Gist,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Eastern Area),

Agency.

Appeal No. 01A51375

Agency No. 1C-281-0046-04

DECISION

Upon review, the Commission finds that complainant's individual complaint

was not properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). In a

complaint dated May 17, 2004, complainant, a level 3 Custodian at the

Charlotte, North Carolina Distribution and Processing Center, alleged

that he was subjected to discrimination on the basis of sex (male), in

violation of Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq., when, on February 23, 2004, he was

notified by his supervisor that he was to be trained in the operation

of the �Billygoat� machine while others were not required to take the

training.<1>

By decision dated November 1, 2004, the agency dismissed complainant's

individual complaint on the basis that complainant failed to show

that he suffered harm or loss with respect to a term, condition, or

privilege of employment for which there is a remedy, pursuant to 29

C.F.R. � 1614.107(a)(1). The agency noted that complainant presented no

testimony or documentation that he ever received training or how he was

harmed by this action. Complainant raised no new arguments on appeal.

The Commission finds that the instant individual complaint states a claim

under the EEOC regulations because complainant showed that he suffered

harm or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. See Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994). Specifically, complainant

indicated in his complaint that the alleged disparate treatment concerning

training was the most recent incident in a continuing pattern wherein

the agency required male Custodians to perform the more onerous tasks

connected to the Custodian position, while similarly-situated female

Custodians were spared from performing such tasks. We find that

complainant has stated a claim upon which, if proven, relief could be

granted. Accordingly, the Commission REVERSES and REMANDS the agency's

final decision dismissing complainant's complaint.

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

(R0900)

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 (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:

March 16, 2005

______________________________ __________________

Carlton M. Hadden, Director Date

Office of Federal Operations

1 Complainant also identified

his claim as a potential class action, alleging that male custodians on

Tour 2 were required to perform tasks which female custodians were not

required to perform and that only make custodians were being trained to

operate the �Billygoat� machine. By decision dated August 19, 2004,

an Administrative Judge determined that the complaint failed to meet

the prerequisites for class certification. In a final action dated

October 28, 2004, the agency implemented the AJ's decision dismissing

the class complaint. We note that attached to the instant Notice of

Appeal (EEOC Form 573), complainant attached only the final decision on

his individual complaint, not the final action on his class complaint.

As complainant's attorney did not submit a brief in support of appeal

indicating otherwise, we find that complainant has appealed only the

decision on his individual complaint. Accordingly, this decision will

be limited to addressing the dismissal of the individual complaint,

and not the class complaint.