0120082430
08-05-2008
Roderick D. Turner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Roderick D. Turner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082430
Agency No. 1G-753-0027-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision 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.
On March 21, 2008, complainant filed a formal EEO complaint. Therein,
complainant claimed that he was subjected to discrimination on the bases
of race (African-American), sex (male), color (Black), and reprisal for
prior protected EEO activity.
In a final decision dated April 3, 2008, the agency framed complainant's
claims in the following fashion:
1. On various dates on October, November and December 2007, he was moved
from his duty assignment and sent to other work areas; and he was not
provided a union steward; and,
2. In January and February 2008 he was harassed regarding work assignments
and overtime; and management did not comply with the provisions of the
Union Agreement.
The agency dismissed claims (1) and (2) for failure to state a claim.
The agency also dismissed claim (1) on the alternate grounds that it
contain the same claim that was addressed in a prior complaint (Agency
Case No. 1G-753-0007-08) which was closed pursuant to a settlement
agreement signed on December 5, 2007.
Claim (1)
Upon review, the Commission finds that claim (1) was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a) (1) for stating the same claims
that are pending or have been decided by the agency or the Commission.
The record shows, and complainant acknowledges, that the matter raised
in claim (1), being moved from his duty assignment, concerns the same
facts addressed in case No. 1G-753-0007-08, which was the subject
of a settlement agreement signed on December 5, 2007. Accordingly,
the Commission finds that the agency properly dismissed claim (1) on
the ground that it states the same claim that was raised in a prior
complaint.1
Claim (2)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission finds that the issues raised in the subject claim do not
expressly address union matters. Instead, a fair reading of the of the
pre-complaint documents and the formal complaint attachments reflects
that claim (2) encompass various discriminatory actions described
by complainant in the following fashion: on January 8 and 31, 2008,
complainant was denied overtime; on January 22, 2008, complainant was
subjected to a verbal and written official discussion; and, on February 7,
2008, complainant was asked to move from his working area. Upon review,
the Commission finds that complainant's claims allege sufficient harm or
loss to complainant's terms, conditions or privilege of his employment
to render him aggrieved under EEOC regulations. Therefore, we find that
the agency improperly dismissed claim (2) for failure to state a claim.
As a final matter, the Commission notes that in his formal complaint,
complainant alleged breach of the December 5, 2007 settlement agreement.
To the extent that complainant is alleging breach of the EEO settlement
agreement and wishes to pursue the matter, he is advised to contact the
agency's EEO Director, in writing, pursuant to 29 C.F.R. � 1614.504(a).
Accordingly, the agency's decision to dismiss claim (1) was proper
and is hereby AFFIRMED. The agency's decision to dismiss claim (2)
for failure to state a claim was improper and is hereby REVERSED and
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claims (claim (2)) 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 (K0408)
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 (M0408)
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 (R0408)
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 (Z0408)
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
August 5, 2008
Date
1 Because of our disposition of this claim, we determine that is
unnecessary to address the agency's alternate dismissal on the grounds
that claim (1) fails to state a claim.
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0120082430
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082430
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