0120090748
03-17-2009
Robert W. Sanchez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert W. Sanchez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090748
Agency No. 1E801008608
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 10, 2008, 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 Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (Hispanic/Native
American), disability (Cervical Radiculopathy), and reprisal for prior
protected EEO activity under a statute that was unspecified in the record
when:
1. During 2005, the Mail Handlers Union did not file complainant's
grievance in a timely manner regarding an overtime issue;
2. During August 2005, complainant was moved from Operation 030 to 175
and was no longer allowed to work overtime
3. On December 24, 2007, complainant was struck twice in the right
shoulder;
4. on December 28, 2007, management falsified complainant's CA-1 and
conspired to not have it submitted to the Office of Workmen's Compensation
(OWCP);
5. on March 20, 2008, complainant was issued a Letter of Warning for
Failure to Report an Accident in a Timely Manner;
6. On or about April 4, 2008, complainant's work hours were changed; and
7. On June 9, 2008, complainant received a Letter of Warning (LOW)
dated June 5, 2008 charging him with Failure to Work in a Safe Manner,
subsequently reduced to an informal discussion.
The agency dismissed the claims for varying reasons. The agency dismissed
claims 1 and 4 for failure to state a claim on the grounds that the claims
were a collateral attack against the OWCP process. The agency further
dismissed claims 1 through 6, inclusive, for untimely EEO counselor
contact. In addition, the agency found that claims 2 and 3 stated the
same claims as those raised in earlier complaints. As regards claim 7,
the agency found that complainant was not aggrieved and that the action
complained of was unlikely to deter protected activity.
On appeal, complainant alleges that the actions complained of
all constitute ongoing harassment and should be included with his
previously-filed complaints.
Following a review of the record we find that the agency correctly
dismissed claims 1 through 6, inclusive. The record shows that the
first incident occurred in 2005 and the most recent on April 4, 2008,
however complainant did not contact an EEO counselor until July 9,
2008, which is beyond the 45-day limitation period. As for claim 7,
while complainant did not suffer a present harm or loss with respect to
a term, condition, or privilege of employment, see Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994), and hence
is not aggrieved, the Commission finds being subjected to an informal
discussion constitutes an action that is reasonably likely to deter
protected activity. We therefore find that complainant states a claim
of reprisal. Accordingly, the FAD is AFFIRMED in part and REVERSED in
part and claim 7 is REMANDED to the agency for further processing.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (T0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the
Court 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, 2009
__________________
Date
2
0120090748
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090748