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