0120112096
08-02-2011
Howard C. Modlin, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Howard C. Modlin, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120112096
Agency No. 4K270001311
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 10, 2011, dismissing his 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), 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. Upon review, the
Commission finds that Complainant's complaint was improperly dismissed
pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Clerk at the Agency’s Greenville Annex Postal facility
in Greenville, NC. On January 29, 2011, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on
the bases of race (Caucasian), sex (male), color (White), disability
(bilateral hearing loss), age (71), and reprisal for prior protected
EEO activity under an EEO statute that was unspecified in the record
when his position was abolished and he became an unassigned regular.
On February 10, 2011, the Agency issued a final decision dismissing the
complaint pursuant to 29 C.F.R. 1614.107(a) for failure to state a claim.
The Agency argued in its Final Agency Decision (FAD) and on appeal
that because the record indicates that the abolishment of positions was
agreed to by the local union, the action was covered by the collective
bargaining agreement. Therefore, the Agency argued that the correct
action for Complainant to have taken was to file a grievance and using
the EEO process was a collateral attack on the collective bargaining
process. The Agency also argued that Complainant was one of a group of
employees whose positions were abolished and that Complainant had the
opportunity to bid for a new position.
Complainant argues on appeal that the Agency has “willfully and
intentionally” discriminated against him on the basis of age and also
“at every angle.”
ANALYSIS AND FINDINGS
The Agency’s argument that Complainant cannot file an EEO complaint
because the Agency believes Complainant should have filed a grievance
is legally incorrect. Pursuant to 29 C.F.R. § 1614.301, a person
employed by an Agency that is subject to 5 U.S.C. 7121(d) and who is
covered by a collective bargaining agreement that permits allegations of
discrimination to be raised in a grievance procedure may elect to file
either a grievance or an EEO complaint, but not both. See Strickland
v. United States Postal Service, EEOC Appeal No. 01297724 (September
2, 1998). However, the Agency is not subject to 5 U.S.C. 7121(d),
meaning that Complainant can file both a grievance and an EEO complaint
if he so chooses. See id. Therefore, the Agency’s contention that
Complainant must pick either the grievance or EEO process to resolve his
complaint is incorrect. Furthermore, as there is no indication from the
record that Complainant has even filed a grievance, the Agency argument
relying on 29 C.F.R. § 1614.301 and the doctrine of collateral attack
is also factually inaccurate.
Additionally, the Commission repeatedly has reversed agencies dismissals
for failure to state a claim where the agency based the dismissal on
its view of the ultimate merit of the complaint allegations.” Id.
Thus the Agency’s argument that Complainant lost his position because he
was one of a group of employees who had their positions abolished goes
to the ultimate merits of the case and is not a basis for dismissing
the complaint on the grounds that it failed to state a claim.
CONCLUSION
As Complainant alleges his position was abolished, Complainant has shown
an injury or harm to a term, condition, or privilege of employment for
which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Accordingly, the Agency's final
decision dismissing Complainant's complaint is vacated. The complaint
is hereby remanded to the Agency for further processing in accordance
with this decision and the Order below.
ORDER (E0610)
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 (K0610)
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 77960, Washington, DC
20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 2, 2011
__________________
Date
2
0120112096
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112096