Robert C. Scheuerman, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 3, 2003
01a34552 (E.E.O.C. Dec. 3, 2003)

01a34552

12-03-2003

Robert C. Scheuerman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Robert C. Scheuerman v. United States Postal Service

01A34552

December 3, 2003

.

Robert C. Scheuerman,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A34552

Agency No. 4A-070-0217-02

DECISION

Upon review, the Commission finds that complainant's complaint was

improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure

to state a claim.

On July 9, 2002, complainant initiated contact with an EEO Counselor.

In that portion of the EEO Dispute Resolution Specialist's Inquiry

Report requesting that complainants identify the bases for alleged

discrimination, the EEO Specialist checked the box labeled �physical

disability� and added the entry �on-the-job injury.� In an Information

for Pre-Complaint Counseling form, complainant stated �I don't know if

it's because of my physical limitation or just because it's �his way or

no way� for his actions.

In a formal complaint dated October 25, 2002, complainant alleged that

he was subjected to discrimination when on June 17, 2002, the station

manager ordered him off the work room floor and sent him home, for being

out of uniform.

In a final decision dated July 17, 2003, the agency dismissed the

complaint for failure to state a claim. Specifically, the agency

determined that in his formal complaint, complainant did not link his

complaint to any protected basis.

On appeal, complainant argues that when he underwent EEO counseling,

he alleged that he was the victim of unlawful employment discrimination

on the basis of physical disability due to a job related injury.

The Commission has previously held that "it is well established that

EEO charges are to be liberally construed to effectuate the purposes of

discrimination statutes and the crucial role of the private litigant

in the statutory scheme. Sanchez v. Standard Brands, Inc., 431 F.2d

455 (5th Cir.1970). President v. Vance, 627 F.2d 353 (D.C.Cir.1980)

(applying the Sanchez principle to federal employees". Raipal v. USPS,

EEOC Request No.05920037 (May 19, 1992). The crucial element in a

charge of discrimination is the set of facts alleged therein, not the

complainant's conclusions concerning the agency's motivation. Mahood

v. Department of Defense, EEOC Appleal No. 01941890 (May 2, 1994).

A fair reading of the record, and specifically the pre-complaint

documents, supported by complainant's assertion on appeal, reflects that

complainant's complaint alleged, in essence, that he was the victim of

unlawful employment discrimination on the basis of disability.

Accordingly, the agency's final decision to dismiss complainant's

complaint was improper since complainant did allege a covered basis

of discrimination. The agency dismissal of the complaint is REVERSED.

The complaint 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

December 3, 2003

__________________

Date