Michael Higgins, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 17, 2005
01a44369 (E.E.O.C. Mar. 17, 2005)

01a44369

03-17-2005

Michael Higgins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Michael Higgins v. United States Postal Service

01A44369

March 17, 2005

.

Michael Higgins,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A44369

Agency No. 4A-088-0071-03

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated May 19, 2004, 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 the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. The agency defined complainant's

complaint as alleging that he was subjected to discrimination on the

bases of race (Caucasian), sex (male), age (56) and in reprisal for

protected activity when:

Complainant was issued a Notice of Proposed Reduction in Grade or Pay

dated August 29, 2003, and a Letter of Decision dated April 1, 2004

(effective April 17, 2004).

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 29 C.F.R. � 1614.107(a)(4), for raising the same matter

in an appeal to the Merit Systems Protection Board (MSPB). The agency

stated that complainant filed appeal PH-0752-04-0315-I-1 with the MSPB

regarding the same issues on April 27, 2004, prior to filing the present

EEO complaint on April 30, 2004.

On appeal, complainant acknowledges that he elected to raise the issue

of his demotion to the MSPB. However, he asserts that the demotion was

one issue raised in his EEO complaint. Complainant states that in his

complaint he alleges that he was subjected to harassment and a hostile

work environment beginning in 2002. Complainant states that many of the

discriminatory incidents he is challenging were described in the April 20,

2004 EEO Precomplaint/Final Interview letter received from the agency.

Complainant notes that in his formal complaint he lists a number of

allegations and remedies. Specifically, complainant states that he

is alleging a continuing pattern of discrimination since August 2002,

including letters of warning he has been issued and other personnel

actions.

The record contains a copy of complainant's MSPB appeal dated April 20,

2004, in which he challenges the agency's April 1, 2004 Letter of Decision

informing him that effective April 17, 2004, he will be demoted. The

record also contains an April 27, 2004 Acknowledgment Order acknowledging

complainant's MSPB appeal under Docket Number PH-0752-04-0315-I-1.

The record contains the April 20, 2004 Notice of Final Interview

identifying complainant's EEO claim as alleging that from August 2002

until June 2003, he was subjected to continuous harassment and a hostile

work environment. The letter details twenty-three separate incidents

from August 2002, through the April 1, 2004 Letter of Decision informing

complainant that he would be reduced in grade.

The record contains a copy of complainant's formal complaint in which he

states that beginning in 2002 and through the present he was: repetitively

exposed to derogatory statements about female employees and customers;

held to a higher standard; disciplined for minor and exaggerated

incidents; unable to perform his duties because of a hostile environment

and management refused to move him from this environment; treated

differently when he was asked to change his schedule, work weekends

and supervise select employees; forced to submit to a psychological

examination and refused access to the results; demoted to a letter

carrier status; and transferred far away from his original station.

Upon review, we find that complainant is not challenging the agency's

dismissal of the Notice of Proposed Reduction in Grade or Pay dated August

29, 2003, and a Letter of Decision dated April 1, 2004 (effective April

17, 2004). Accordingly, the Commission will not address the propriety

of the agency's dismissal of this issue.

However, we find the agency has failed to acknowledge or address

complainant's claim that he has been subjected to a hostile work

environment as identified in his formal complaint. While we note that

complainant does not provide specific dates of the alleged incidents of

harassment in his formal complaint, a review of the record reveals that

many of these incidents appear to be the same incidents described in the

agency's April 20, 2004 Notice of Final Interview. In this correspondence

and elsewhere in the record, complainant specifies discrete acts of

alleged discrimination as well as incidents of harassment, some of which

he claims began in August 2002. Therefore, we find that the agency has

misdefined the complaint by failing to address these claims and that

the agency has effectively dismissed these claims without a reason.

Such a dismissal is improper.

Accordingly, the agency's decision dismissing complainant's claims (other

than the Notice of Proposed Reduction in Grade or Pay dated August 29,

2003, and a Letter of Decision dated April 1, 2004 (effective April 17,

2004)) is REVERSED and these issues are REMANDED for further processing

in accordance with 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

March 17, 2005

__________________

Date