01a44691
10-20-2004
Robert C. Oehlke, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert C. Oehlke v. United States Postal Service
01A44691
October 20, 2004
.
Robert C. Oehlke,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44691
Agency No. 4J-530-0097-04
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), and 29
C.F.R. � 1614.107(a)(1) for untimely EEO Counselor contact and for
failure to state a claim.
On April 20, 2004, complainant initiated EEO Counselor contact. In an
Information for Pre-Complaint Counseling Form, dated April 25, 2004,
complainant stated that on April 2, 2004, he was informed by a Station
Manager that an agency Postmaster stated that she had appointed a female
to a Senior SCOM position and that the Postmaster �would get rid of
[complainant] and get an all female staff� and that she also stated that
�I'll force him into retirement.� Complainant stated that after hearing
this comment, and based on the treatment he had been receiving at the
agency, he decided to retire effective April 30, 2004. Informal efforts
to resolve complainant's concerns were unsuccessful.
On May 18, 2004, complainant filed the instant formal complaint.
Therein, complainant claimed that he was the victim of unlawful employment
discrimination on the basis of sex. Complainant's complaint was comprised
of the matter for which he had undergone EEO counseling, discussed above.
In that portion of the complaint form requesting that complainants
identify the date on which alleged discrimination occurred, complainant
wrote �Feb. 2004.� As relief, complainant requested compensatory damages
due to having to retire five years earlier than he had planned.
In a final decision dated June 7, 2004, the agency dismissed the instant
complaint on the grounds of untimely EEO contact. The agency determined
that complainant's complaint was comprised solely of the claim that in
February 2004, complainant was informed of the comment identified above.
The agency further determined that the alleged discriminatory event
occurred in February 2004, but complainant did not initiate contact with
an EEO Counselor until April 20, 2004, which is beyond the forty-five
(45) day limitation period.
The agency also dismissed the complaint on the alternative grounds of
failure to state a claim.
On appeal, complainant states that on April 2, 2004, he was informed
that an agency Postmaster stated that she was going to �get rid of
[complainant] so she can have an all-female staff.� Complainant asserts
that this was the first time he had heard a �solid statement,� even though
he witnessed grave disparity of treatment by the Postmaster for some
months. Complainant noted that the treatment that preceded hearing the
comment on April 2, 2004, was �totally intolerable.� Complainant noted
that because of stress to which he had been subjected by the Postmaster,
he was forced into retirement. Finally, complainant acknowledges that
the statement was made in February 2004, but that he did not become
aware of this matter until April 2004.
As a preliminary matter, the Commission determines that a fair reading
of the instant complaint, supported by complainant's statement on appeal,
reflects that complainant claimed that he was subjected to harassment by
a Postmaster, culminating in the report of a remark in April 2004, that
precipitated his forced retirement from agency employment. We determine
that this claim addresses a personal loss or harm regarding a term,
condition, or privilege of complainant's employment. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Moreover, the Commission determines that the comment purportedly
heard by complainant on April 2, 2004, as well as his alleged forced
retirement that was purportedly precipitated by the comment, occurred
within forty-five days of complainant's initial EEO Counselor contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and the complaint as defined herein is REMANDED
to the agency for further processing as ordered 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 (R0900)
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 (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
October 20, 2004
__________________
Date