01a00858
06-16-2000
Harold B. Einarson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Harold B. Einarson, )
Complainant, )
)
v. ) Appeal No. 01A00858
) Agency No. 4B-020-1073-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 8, 1999, complainant filed a timely appeal with this
Commission from an agency decision dated November 4, 1999, addressing his
complaint 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.;
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.; and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.<1>
On October 16, 1999, complainant filed a formal complaint claiming that
he was the victim of unlawful employment discrimination on the bases
of his disability (mental), age (forty and over), and in reprisal prior
EEO activity when:
On October 5, 1999, complainant's September 16, 1999 request to transfer
to the J.W. McCormack Station as a reasonable accommodation was denied;
and
Management failed to mail him his pay stubs.
On November 4, 1999, the agency issued a final decision dismissing claim
one for failure to state a claim and for stating the same claim that is
pending before, or has been decided by the agency or the Commission.
Specifically, the agency found that claim one is not actionable and
therefore fails to state a claim because it arose within the context of
a settlement negotiation. In addition, the agency also dismissed claim
one for stating the same claim as in Agency Case No. 4B020-1010-96;
4B-020-0102-98; 4B-020-0001-99; and 4B-020-0041-99. Claim two was
accepted for investigation by the agency.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at and
hereinafter referred to as 29 C.F.R. � 1614.107(b)) provides that where
an agency decides that some but not all of the claims in a complaint
should be dismissed, the agency shall notify the complainant of its
determination; however this determination is not appealable until final
action is taken on the remainder of the complaint. According to the
record, it appears that the remainder of the complaint, i.e., claim
two, was withdrawn on December 18, 1999, rendering the claim pending
herein the only remaining viable matter and therefore ripe for review on
appeal. The appeal of dismissal of claim one is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
The regulation set forth at 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
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 22, 1994). A term, condition, or privilege of
employment has been held in Commission decisions to include inter alia,
promotion, demotion, discipline, reasonable accommodation, appraisals,
awards, training, benefits, assignments, overtime, leave, tours of duty,
etc. See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 17, 1997). After a careful review of the entire record and all
submissions on appeal, the Commission finds that the agency improperly
dismissed claim one for failure to state a claim. In this case, although
the transfer request may have initially arose within the context of
a settlement negotiation, the complainant did, thereafter, request a
transfer subsequent to the failure of the negotiations. Therefore,
claim one occurred outside the realm of the settlement negotiation and
accordingly it does state a claim.
The agency also dismissed claim one pursuant to 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(1)) which provides, in relevant part, that the agency shall
dismiss a complaint that states the same claim that is pending before or
has been decided by the agency or Commission. The Commission notes that
the record contains the first page of the Investigative Report for the
four prior cases that the agency identified as raising the same issue
as claim one herein. While all those complaints appear to have been
based on age, disability, and discrimination in reprisal for prior
EEO activity, the allegations involved do not appear to involve the
denial of a transfer as a reasonable accommodation. For example, those
prior complaints raise issues involving the suspension of complainant's
government driving license, AWOL charge, 14-day suspension, the denial
of reasonable accommodation on June 28, 1996, a failure to act on his
sick leave request, being required to perform work beyond his medical
restrictions, and Letters of Warning. There is no evidence of record
to show that complainant previously contested the denial of a transfer
as a reasonable accommodation. Thus, the agency failed to substantiate
the bases for its final decision. See Marshall v. Department of the
Navy, EEOC Request No. 05910685 (September 6, 1991). Accordingly,
the agency's decision to dismiss claim one pursuant to 29 C.F.R. �
1614.107(a)(1) was improper.
For the reasons set forth herein, the Commission hereby REVERSES the
agency's final decision dismissing claim one. Claim one is REMANDED to
the agency for further processing in accordance with this decision and
applicable regulations.
ORDER (E0400)
The agency is ORDERED to process the remanded claim 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 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 (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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
June 16, 2000
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 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.