0120112774
10-13-2011
Joseph D. Woods, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Joseph D. Woods,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120112774
Agency No. 1G753000411
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision (Dismissal) dated March 24, 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. and Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Handler1 at the Agency’s Processing & Distribution Center
facility in Dallas, Texas. On February 23, 2011, Complainant filed a
formal complaint alleging that the Agency subjected him to discrimination
on the bases of disability (right ankle and knee) and reprisal for prior
protected EEO activity under an EEO statute that was unspecified in the
record when:
1. Complainant was sent home and not allowed to work on Columbus Day,
October 10, 2010; and
2. Complainant was placed in a “non productive operation” for several
weeks and not allowed to work.
The Agency characterized the claims as follows: Complainant was denied
overtime on Columbus Day; and Complainant’s “job as a Forklift
Operator was denied.” The Agency dismissed both issues for failure to
state a claim. The Agency found that, following a grievance, Complainant
was paid for the overtime, and that he was therefore not harmed by the
Agency’s actions. With regard to Complainant’s job as a forklift
operator being denied, the Agency found that his job was not denied and
that, again, Complainant was not harmed. The Agency further found that
Complainant’s claim regarding the denial of overtime constituted a
collateral attack against the grievance process.
On appeal, Complainant submits evidence to show that the Agency failed to
cooperate with his request to provide information regarding an injury he
incurred at work. Complainant, however, makes no new argument on appeal.
The Agency requests that we affirm its Dismissal.
ANALYSIS AND FINDINGS
We note initially that claim 2, wherein Complainant alleges he was placed
in a “non productive operation” for several weeks and not allowed to
work, identifies essentially the same issue as claim 2 from the Agency’s
Dismissal, wherein the Agency describes Complainant as alleging that his
job as a Forklift Operator was denied. The Agency found that Complainant
failed to state a claim because his job was not denied. In addition,
the Agency found that Complainant’s claim that he was denied overtime on
Columbus day, 2010, failed to state a claim because Complainant eventually
grieved the matter and was paid for the day in question. After a review
of the Dismissal, the Commission finds that the Agency has addressed the
merits of Complainant’s complaints without a proper investigation as
required by the regulations. We find that the Agency’s articulated
reasons for the actions in dispute, i.e., that Complainant was paid for
working on Columbus day, and that his Forklift position was not denied,
both go to the merits of Complainant’s complaints, and are irrelevant
to the procedural issue of whether he has stated a justiciable claim
under Title VII. See Osborne v. Dep’t of the Treasury, EEOC Request
No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request
No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC
Request No. 05910642 (Aug. 15, 1991).
With regard to the issue of collateral attack, we note initially that
the only record evidence of a previously filed grievance constitutes a
document entitled “Update Grievance Record” which indicates that
Complainant received a payment of $33.00 but provides no indication
that the subject matter of the grievance was the same as the matter at
issue herein. As such it is woefully inadequate in establishing that
Complainant’s present complaint constitutes a collateral attack on
the grievance procedure. Furthermore we note that as Complainant is
not subject to the provisions of 5 U.S.C. 7121(d), he is entitled to
file both a grievance and EEO complaint. See 29 C.F.R.1614.301(c); Madej
v. Department of the Treasury, EEOC Request No. 05900049 (March 29, 1990);
EEOC Management Directive 110. 4-7. Accordingly, the Agency's Dismissal
was improper and is reversed. 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
October 13, 2011
__________________
Date
1 Complainant’s position has also been described in the record as
Forklift Operator and as Equipment Operator.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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