01a45459
11-24-2004
Harlan F. Henry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Harlan F. Henry v. United States Postal Service,
01A45459
November 24, 2004
.
Harlan F. Henry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45459
Agency No. 1E-971-0049-04
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated July 20, 2004, regarding his formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on race and sex. Informal efforts to resolve complainant's concerns
were unsuccessful. On June 3, 2004, complainant filed a formal complaint.
In its July 20, 2004 final decision, the agency determined that
complainant's complaint was comprised of two claims, identified as
follows:
(1) On April 27, 2004, complainant was dissatisfied with the results
of a sexual harassment fact finding investigation; and
(2) On an unspecified date, complainant was denied the right to file
an EEO complaint.
The agency dismissed claim (1) for failure to state a claim. Regarding
claim (1), the agency noted that an employee alleged that complainant
was sexually harassing her; and that as a result, an investigation was
conducted whose results were inconclusive. According to the agency,
there was no evidence that the action caused complainant to suffer any
measurable personal harm.
Regarding claim (2), the agency stated that claims relating to
dissatisfaction with the EEO complaint process only require the agency
to refer the complainant to the agency official responsible for complaint
processing quality.
On appeal, complainant, through his attorney, argues that the terms
and conditions of his employment were changed as a result of the
investigation. Complainant explains that following the harassment
allegations, he was �transferred from his position on OCR to a different
and more physically difficult job in the box section of the plant,
and his hours were changed.� Complainant contends that when other
employees were cleared of wrongdoing, those employee were returned to
their positions. Complainant claims that he was not likewise returned,
and that the agency's purported actions were due to his race.
In response, the agency states that the �reassignment occurred before the
fact finding investigation was completed� and that complainant is a Part
Time Flexible employee with flexible assignments and hours . The agency
notes that this matter is best addressed through the grievance procedure.
Claim (1)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant 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, .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 21, 1994).
As an initial matter, the Commission finds that the agency misdefined
claim (1). The Counselor's Report indicates that complainant was
not simply dissatisfied with the results of the sexual harassment
investigation, but rather, with his treatment during the fact finding
investigation. According to the Counselor's Report, complainant claimed
that he was reassigned to the first floor box section. In his formal
complaint, complainant again refers to the reassignment and notes that
the repetitive bending and stooping was injuring his back. As noted
above, complainant argues on appeal that the terms and conditions of
his employment were changed. Specifically, complainant argues that
he was moved to a �different and more physically difficult job� with
different hours. Therefore, we find that a fair reading of the complaint
reflects that complainant claims he was reassigned to the box unit and
given different hours due to his race and sex.
The Commission finds that complainant has alleged a harm to a term,
condition or privilege of his employment and stated a claim of
discrimination. While the agency presents several arguments on appeal,
including the argument that complainant is a Part Time Flexible employee,
we find that such reasoning inappropriately goes to the merits of the
complaint and is irrelevant to the procedural issue of whether he has
stated a justifiable claim under Title VII. See Ferrazzoli v. USPS,
EEOC Request No. 05910642 (August 15, 1991).
Claim (2)
In claim (2), complainant claimed that he was prevented from filing an
EEO complaint. Specifically, complainant claimed in his formal complaint
that he tried to file an EEO complaint but was told that he would have
to show harm. The Commission notes, however, that despite complainant's
assertions that he was prevented from filing an EEO complaint, complainant
nonetheless filed a formal EEO complaint that is the subject of the
instant appeal. While clearly the agency is prohibited from deterring
complainants from utilizing the EEO process and the agency should insure
that such deterrence does not occur, since complainant was not deterred
in the present case, there does not appear to be any further action
available by the continued investigation of this claim.
Accordingly, the agency's decision to dismiss claim (1) was improper
and is hereby REVERSED.
Claim (1) is REMANDED to the agency for further processing in accordance
with this decision and the ORDER below.
ORDER (E0900)
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 (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
November 24, 2004
__________________
Date