Harlan F. Henry, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 24, 2004
01a45459 (E.E.O.C. Nov. 24, 2004)

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