0120090131
02-19-2009
Frederick T. Campbell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frederick T. Campbell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090131
Agency No. 1E-981-0047-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision, dated
September 4, 2008, pertaining to 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 Commission accepts the appeal in accordance with 29
C.F.R. 1614.405.
Believing that he was subjected to discrimination, complainant contacted
the EEO office. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, complainant filed a formal complaint
based on race, sex and age. The agency framed the claim as follows:
On April 29, 2008, complainant was informed that he couldn't work at
Seattle P&DC (and would have to go back to the Air Mail Center).
In its decision, the agency dismissed the complaint on the ground that
it alleged dissatisfaction with the processing of a prior complaint.
The agency reasoned that the challenged action was taken in conjunction
with the settlement of Case No. #1E-985-0002-06. Further, if complainant
was alleging breach of the settlement agreement, the agency advised him to
present the allegation in writing to the EEO office. Therefore, finding
that the complaint was an improper "spin-off", the agency dismissed the
matter pursuant to 29 C.F.R. 1614.107(a)(8).
EEOC Regulation 29 C.F.R. 1614.107(a)(8) provides that an agency shall
dismiss claims alleging dissatisfaction with the processing of a prior
complaint. Dissatisfaction with the EEO process must be raised within the
underlying complaint, not as a new complaint. See Management Directive
110 (MD-110) 5-23, 5-25 to 5-26 (Nov. 9, 1999).
A review of the formal complaint shows that complainant believed he was
discriminated against when his request to return to the Seattle P&DC
was denied. According to the Counselor's Report, complainant asserted
that at the Seattle P & DC he would have had a higher rate of pay as a
tugger driver. Further, the counselor's inquiry noted that management
believed "the issue is really about complainant's last chance agreement",
wherein complainant agreed to remain an unassigned full time mail handler
at Seattle AMC.
The Commission finds that the agency has inappropriately addressed the
merits of complainant's complaint, without a proper investigation as
required by the regulations. We find that the agency's articulated
reason for the action in dispute, i.e., that a January 19, 2007 Last
Chance Agreement required complainant to work at Seattle AMC, goes to the
merits of complainant's complaint, and is irrelevant to the procedural
issue of whether he has stated a justiciable claim under Title VII.
See Osborne v. Department of the Treasury, EEOC Request No. 05960111
(July 19, 1996); Lee v. United States Postal Service, EEOC Request
No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal
Service, EEOC Request No. 05910642 (August 15, 1991).
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERESED. The complaint is 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 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 (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 (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 (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
February 19, 2009
__________________
Date
2
0120090131
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090131