01986714_r
12-09-1999
Francisco Pecunia-Vega, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Francisco Pecunia-Vega v. United States Postal Service
01986779
December 9, 1999
Francisco Pecunia-Vega, )
Appellant, )
)
v. ) Appeal Nos. 01986779
) 01986807
William J. Henderson, ) Agency Nos. 4D-280-0122-98
Postmaster General, ) 4D-280-0137-98
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On September 12, 1998, complainant filed timely appeals with this
Commission from final agency decisions (FADs) dated August 27, 1998,
and August 28, 1998, pertaining to his complaints of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.<1> Pursuant to 29 C.F.R. �
1614.606, the Commission hereby consolidates appellant's complaints
for decision on appeal. In his complaints, complainant alleged that
he was subjected to discrimination on the bases of race (Hispanic),
national origin (Puerto Rican), and in reprisal for prior EEO activity
when on April 29, 1998, and April 30, 1998, complainant's supervisor
(S1) specified which portion of complainant's route was to be handed
off for auxiliary assistance.
The agency dismissed complainant's complaints for failure to state
a claim. Specifically, the agency concluded that complainant failed
to show how S1's actions caused him harm to the terms, conditions,
or privileges of his employment, and, therefore, he was not aggrieved
under the EEOC regulations.
On appeal, complainant contends that similarly-situated co-workers were
permitted to decide which portions of their routes were to be handed off
for auxiliary assistance, and that he was singled out by S1 when he was
not asked which portions of his route were to be handed off.
In response, the agency contends that S1 determines the portions of
routes to be handed off for auxiliary assistance in all cases for
which assistance is requested. Consequently, the agency contends that
complainant was treated no differently than his co-workers in this
respect. Also, the agency argues that on April 30, 1998, complainant's
route had 2.25 feet less than reference volume and that complainant did
not request assistance.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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 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 22, 1994).
In the instant matter, the Commission finds that the agency erred
in dismissing complainant's complaints for failure to state a claim.
Complainant alleged that in contrast to the routes of his co-workers,
S1 specified which portions of complainant's route were to be handed
off for auxiliary assistance. As this decision directly affects the
terms, conditions, or privileges of complainant's employment; i.e.,
which portions of complainant's route he would be responsible for,
we find that complainant was aggrieved.
To the extent that the agency contends that S1 determines the portions
of all routes to be handed out for auxiliary assistance, or that
complainant had less reference volume on April 30, 1998, we find that
the agency is addressing the merits of complainant's complaints without
a proper investigation as required by the regulations. The agency's
justification for S1's actions is irrelevant to the procedural issue
of whether complainant has stated a justiciable claim under Title VII.
See Osborne v. Department of the Treasury, EEOC Request No. 05960111
(July 19, 1996); Lee v. USPS, EEOC Request No. 05930220 (August 12,
1993); Ferrazzoli v. USPS, EEOC Request No. 05910642 (August 15, 1991).
Accordingly, the agency's decision to dismiss the complaints was improper,
and is hereby REVERSED. The complaints are REMANDED to the agency for
further processing in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to consolidate complainant's claims and process them
in accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.108). The agency shall
acknowledge to the complainant that it has received the remanded claims
and consolidated the complaints 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 an
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
December 9, 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.