01A21969
09-24-2003
Jimmie E. Criollo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jimmie E. Criollo v. United States Postal Service
01A21969
09-24-03
.
Jimmie E. Criollo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21969
Agency No. 4G-780-0351-01
DECISION
On February 7, 2002, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dismissing his complaint.
The appeal is accepted by the Commission in accordance with 29 C.F.R. �
1614.405.
On September 13, 2001, complainant filed a formal complaint alleging
discrimination based on national origin (Hispanic), age (DOB: 5/15/53)
and retaliation (prior EEO activity) when:
1) he was skipped over on the vacation schedule for Leave Year 2001
when leave was approved for less senior employees in violation of the
union agreement;
2) the station manager affected his opportunity to be a part of the
loop concerning postal safety and informative changes;
3) on May 29, 2001, supervisory agents questioned him about his hurry
to train an employee and stated to him and his union representative that,
�You and [complainant's name] need to grow up;� and
4) on May 22, 2001, supervisory agents attempted to coerce him into
accepting a day off, if he withdrew an EEO complaint.
On January 28, 2002, the agency issued a FAD dismissing issue (1) on the
grounds that complainant sought EEO counseling in an untimely manner.
Issue (2) was dismissed on the grounds that it stated the same claim
as that set forth in Complaint No. 4G-780-0365-00 previously filed by
complainant. Issue (3) was dismissed on the grounds that it failed to
state a claim. Issue (4) was dismissed on the grounds that it was a
�spin off complaint,� i.e., an allegation that raises dissatisfaction
with the processing of another EEO complaint. This appeal followed.
With regard to issue (1), the record indicates that complainant contacted
an EEO counselor on June 4, 2001; however, the vacation schedules were
posted in January each year. An aggrieved individual must contact an EEO
counselor within 45 days of the alleged discriminatory occurrence. 29
C.F.R. � 1614.105(a)(1). The limitation period is not triggered until
a complainant should reasonably suspect discrimination, but before all
the facts that would support a charge of discrimination become apparent.
Ball v. United States Postal Service, EEOC Request No. 05880247 (July
6, 1988). We find that complainant's June 4 EEO contact was more
than 45 days after he should have reasonably suspected discrimination.
Accordingly, we affirm the dismissal of issue (1).
With respect to issue (2), we affirm the agency's dismissal of this
claim for the following reasons. 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. A review of complainant's
Complaint No. 4G-780-0365-00, which was filed on November 27, 2000,
indicates that, among other things, he maintained that from February
1998 until the present, he had been denied attendance to safety and
information meetings. This claim is identical to that raised in issue
(2) of his present complaint, 4G-780-0351-01.<1> Therefore, we conclude
the agency's dismissal of issue (2) was proper.
Regarding issue (3), the Commission has consistently held that a remark
or comment unaccompanied by concrete action is not a direct and personal
deprivation sufficient to render an individual aggrieved for the purposes
of Title VII. Henry v. USPS, EEOC Request No. 05940695 (February 9,
1995). There is no evidence in the record that complainant was subjected
to any adverse action or disciplinary action as a result of the alleged
comment. Accordingly, we affirm the dismissal of issue (3) pursuant to
29 C.F.R. � 1614.107(a)(1).
With regard to issue (4), we note that the regulation set forth at
29 C.F.R. � 1614.107(a)(8) provides, in relevant part, that an agency
shall dismiss claims alleging dissatisfaction with the processing of a
prior complaint. Here, we find that the agency's dismissal of issue (4)
was improper. Contrary to the agency's assertion otherwise, complainant
was not expressing dissatisfaction with the processing of Complaint
No. 4G-780-0365-00. According to complainant, management officials
attempted to coerce him into withdrawing his complaint. The Commission
has held that, in order to state a claim of reprisal discrimination,
adverse actions need not qualify as "ultimate employment actions" or
materially affect the terms and conditions of employment to constitute
retaliation. Lindsey v. United States Postal Serv., EEOC Request
No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003
(May 20, 1998)). Instead, the statutory retaliation clauses prohibit
any adverse treatment that is based upon a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity. Id. Accordingly, we will reverse the dismissal
of issue (4) and will remand this matter to the agency for processing.
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
____09-24-03______________
Date
1On June 28, 2002, the agency issued a
decision finding no discrimination regarding Complaint No. 4G-780-0365-00.
Complainant's appeal is pending before the Commission.