0120103604
01-14-2011
Hugh E. Lee, JR, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Hugh E. Lee, JR,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120103604
Agency No. 1H326000210
DECISION
Complainant filed an appeal with this Commission from an Agency decision,
dated July 27, 2010, pertaining to his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. 1614.405.
BACKGROUND
During the relevant time, Complainant worked as a Clerk1 at the Agency’s
Pensacola Processing and Distribution Center in Pensacola, Florida.
On December 23, 2009, Complainant was issued a letter denying his
request for a reasonable accommodation, which he thought was based on
irrelevant and improperly obtained medical information. Believing that
the Agency’s actions were discriminatory, Complainant contacted
the EEO office. Informal efforts to resolve Complainant’s concerns
were unsuccessful. Subsequently, he filed a formal complaint on May 5,
2010 based on disability and retaliation. The Agency framed the claims
as follows:
(1) On November 3, 2009, Complainant was told he could not eat lunch in
the maintenance break room, subsequently a notice was posted regarding
the break room during passdown which was then taken down;
(2) On November 6, 2009, Complainant addressed his concerns with [Employee
K] who as of December 29, 2009, informed Complainant to purse whatever
he felt necessary;
(3) On December 23, 2009, Complainant became aware management attempted
to access his medical records without his consent;
(4) On December 23 and 24, 2009, Complainant was not provided a reasonable
accommodation.
On May 19, 2010, the Agency dismissed claims (1) through (3) for failure
to state a claim. The Agency reasoned that there was no evidence that
Complainant was subjected to any adverse action or denied an entitlement
related to a term, condition or privilege of his employment. At that
time, the Agency accepted claim (4) for investigation.
Approximately a month later, on July 27, 2010, the Agency dismissed
claim (4) on the grounds that it raised the same claim that was
previously decided by the agency. According to the Agency, the
accommodation issue “is the outcome of the settlement of your previous
complaint.” The Agency stated that the settlement provided Complainant
with the opportunity to go through the District Reasonable Accommodation
Committee and abide by the DRAC decision. On December 23, 2009, the DRAC
Chairperson instructed Complainant to remain in his assignment on limited
duty as a Mailhandler at the Pensacola P&DC. Further, the Agency noted
that it had addressed an earlier allegation of breach by Complainant.
Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erroneously combined
separate claims and improperly dismissed his complaint. He contends
that the DRAC Chairman attempted, at least twice, to access his personal
medical records. Further, Complainant asserts that the Agency has ignored
his requests for a reasonable accommodation, that an impartial DRAC has
not been convened. Lastly, disparaging remarks and exclusion from his
peer group by the Agency has created in a hostile work environment.
In response, the Agency reiterates the reasoning set forth in its
final decision. It asks the Commission to affirm its dismissal of
the complaint.
ANALYSIS AND FINDINGS
Claims (1), (2), and (3)
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. Dep’t of the Air Force, EEOC
Request No. 05931049 (Apr. 21, 1994).
The Commission agrees that the Complainant has failed to show that
he suffered a personal loss or harm regarding a term, condition or
privilege of his employment as a result of the events in claims (1),
(2), and (3). The Agency’s dismissal of those claims, pursuant to
29 C.F.R. 1614.107(a)(1) was proper.
Claim (4)
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides 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.
As noted above, the Agency contends that the matter in claim (4)
concerns a previously executed settlement agreement. On appeal, the
Agency has provided a copy of the March 11, 2009. The agreement provides
that Complainant “will be afforded the opportunity to go through the
DRAC process” and that the parties “will abide by the recommendation
of the DRAC committee.” The Committee was to determine whether or
not Complainant could presently perform the essential functions of his
position, with our without a reasonable accommodation, and whether he
was able to perform them from March 2008 until March 11, 2009. If he
could perform the essential function of an Electronic Technician, he
would be returned to that position. However, if the DRAC committee
determined that Complainant could not, he would remain in his current
Limited Duty assigned in the Mail Handler craft.
Based on a review of the record, we find that Complainant’s assertions
regarding claim (4) illustrate that the matter relates to the March
2009 settlement agreement. Complainant is challenging actions taken and
decisions made by the DRAC Committee. Rather than raising his concerns
as a new complaint, Complainant should allege breach of the agreement.2
CONCLUSION
Accordingly, the Agency’s decision to dismiss the complaint was proper
and is hereby AFFIRMED.
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 (S0610)
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. 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 (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
January 14, 2011
__________________
Date
1 The Agency in its decision identifies Complainant’s position
as “Clerk”, while the formal complaint states “Electronic
Technician”.
2 While the Agency contends that prior allegations of breach have been
processed, it is unclear from the instant record whether the precise
concerns presently before us were raised in those breach claims.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120103604
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103604