Luis Roman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01A45860_r (E.E.O.C. Nov. 29, 2004)

01A45860_r

11-29-2004

Luis Roman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Luis Roman v. United States Postal Service

01A45860

November 29, 2004

.

Luis Roman,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A45860

Agency No. 1F-941-0059-04

DECISION

Complainant filed a timely appeal with this Commission from a final agency

decision, dated August 25, 2004, pertaining to his formal 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.

The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.

Complainant contacted the EEO office regarding the denial of overtime.

Informal efforts to resolve complainant's concerns were unsuccessful.

On July 26, 2004, complainant filed a formal complaint based on national

origin, sex, and lack of disability.

In its final decision, dated August 25, 2004, the agency determined that

complainant's complaint was comprised of the following claim:

Complainant has been denied overtime in his preferred assignment on

a continuing basis since March 1, 2004, because management has been

assigning limited/light duty employees at the K-15 belt.

The agency dismissed the formal complaint for failure to state a claim.

The agency found that the overtime and assignment matter raised in the

formal complaint are matters covered by the agreement between the agency

and union. The agency determined that complainant should utilize the

negotiated grievance process rather than the EEO complaint process.

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. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

The only proper questions in determining whether a claim is within the

purview of the EEO process are (1) whether the complainant is an aggrieved

employee and (2) whether she has alleged employment discrimination

covered by the EEO status. An employee is �aggrieved� if she has

suffered direct and personal deprivation at the hands of the employer.

See Hobson v. Department of the Navy, EEOC Request No. 05891133 (March

2, 1990). In the instant case, complainant contends that employees

outside his protected classes, race and sex, were given overtime while he

was not. We find that complainant's claim is sufficient to render him

an aggrieved employee. Because he has claimed that the adverse action

was based on race and sex, he has raised a claim within the purview of

the EEOC regulations.

Finally, the Commission notes that although complainant includes the

basis of disability in his formal complaint, it is not reflected in the

final agency decision. The agency is reminded that it must clearly and

explicitly dismiss bases, and offer appeal rights regarding them, in

order to have such bases stated in a formal complaint dismissed. See

Jozlin v. Department of Veterans Affairs, EEOC Appeal No. 01920040

(February 12, 1992). We find, however, that complainant contends

that he suffered discrimination based on his lack of a disability.

While complainant checked the box on his complaint form for �disability,�

he made the following annotation next to the box: �no mental/physical

impairments.� Complainant claimed that management is assigning preferred

jobs to limited/light duty employees over healthy employees. Therefore,

we find that agency's failure to address the basis of lack of disability

to be tantamount to a dismissal of the basis, which we hereby affirm,

since such a basis is not within the purview of the EEO Regulations.

Accordingly, the agency's decision to dismiss the complaint was improper

and is hereby REVERSED. The dismissal of the basis of lack of disability

is AFFIRMED. The complaint based on race and sex is REMANDED to the

agency for further processing in accordance with this decision and the

ORDER below.

ORDER (E0900)

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 (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

November 29, 2004

__________________

Date