Andrzej J. Rafalski, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 21, 1998
01980610 (E.E.O.C. Oct. 21, 1998)

01980610

10-21-1998

Andrzej J. Rafalski, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Andrzej J. Rafalski, )

Appellant, )

)

v. ) Appeal No. 01980610

) Agency No. 1K-221-0158-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On October 21, 1997, appellant filed a timely appeal with this Commission

from a final agency decision ("FAD") received by him on October 10,

1997, pertaining to his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. �621 et seq., and �501 of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. �791 et seq. In his complaint,

appellant alleged that he was subjected to discrimination on the bases

of national origin (Polish), age (DOB 12/11/49), physical disability

(on-the-job back injury), and in reprisal for prior EEO activity when:

On June 11, 1997, appellant became aware that a file containing 12

folders of confidential information concerning him was left on a table

unsecured in the supervisor's office while the supervisor was on leave;

On several occasions appellant's payroll check was delivered on Friday,

and once on a Saturday, rather than on Thursday;

On July 4, 1997, the work schedule was manipulated so that appellant

would not be paid for the holiday;

In the July 5 - 18, 1997 pay period, appellant was not paid for a 2.5

hour shortage;

On June 11, 1997, appellant learned that his character was defamed by

the Plant Safety Specialist (PSS) in a cc:mail (dated March 20, 1997)

to appellant's supervisor;

Appellant feels that the 12 files he discovered in his supervisor's

office were used as a chain conspiracy against him for possible

disciplinary action, including a proposed removal;

On or about July 1, 1997, appellant became aware of a cc:mail memo

by the PSS, dated March 20, 1997, which appellant feels was forwarded

to other postal officials in violation of his civil rights, privacy,

and rights under the Rehabilitation Act;

On or about July 1, 1997, appellant became aware of a cc:mail memo by

the Senior Injury Compensation Specialist (SICS), dated March 13, 1997,

which appellant feels is a conspiracy to place him in a hostile work

environment, and force him to do a job which duties are in conflict

with his medical restrictions;

On or about July 1, 1997, appellant became aware of a cc:mail memo by

the SICS, dated April 4, 1997, which appellant feels is a conspiracy

to discredit his stress claim and place him in a false light; and

On an unspecified date, the file containing 12 folders of appellant's

confidential records was used to defame, embarrass, and present him in

a bad image, with the intent to destroy his reputation and character.

On October 6, 1997, the agency issued a final decision accepting

allegations (2) through (5) for investigation, and dismissing allegation

(1), pursuant to 29 C.F.R. �1614.107(a), for failure to state a claim,

and allegations (6) through (10), pursuant to 29 C.F.R. �1614.107(b),

for raising matters that were not brought to the attention of an EEO

Counselor and were not like or related to a matter that was brought to

the attention of an EEO Counselor.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss

a complaint which 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; �1614.106(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).

With regard to appellant's first allegation, we find that appellant failed

to show that he suffered harm with respect to the terms, conditions,

or privileges of his employment as a result of his file having been left

unsecured in his supervisor's office. Appellant did not allege that his

confidentiality was, in fact, breached. Instead, he alleged that his

confidentiality could have been breached. Accordingly, the absence of

an actual present harm dictates the conclusion that appellant failed to

state a claim with regard to allegation (1). See Parks v. Department of

Defense, EEOC Request No. 059503141 (September 11, 1995) citing Drummond

v. Department of the Army, EEOC Request No. 05940574 (February 7, 1995).

Similarly, we find that allegations (6) and (10) fail to state

a claim. Allegation (6) also concerns speculative future harm that

may come to appellant as a result of the information contained in the

12 files. Absent an identifiable present harm, allegation (6), too,

must be dismissed pursuant to 29 C.F.R. �1614.107(a). With regard to

allegation (10), despite appellant's general allegations that the 12

files were used to defame, embarrass, and present him in a bad image,

he failed to show any actual harm that occurred as a result of the mere

existence of the files. Moreover, we find that allegation (10) is too

vague to state a processable claim under the EEOC Regulations. See 29

C.F.R. �1614. 106(c)(requiring a complaint to contain a statement that is

sufficiently precise to describe generally the action(s) or practice(s)

that form the basis of the complaint). Accordingly, allegations (6)

and (10) were properly dismissed under 29 C.F.R. �1614.107(a).<1>

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint or a portion of a complaint that states the same claim

that is pending before or has been decided by the agency or Commission.

In the instant complaint, we find that allegation (7) concerns the

same matter that is the subject of allegation (5), i.e., the alleged

discriminatory cc:mail by the PSS dated March 20, 1997. Consequently,

allegation (7) was properly dismissed for stating the same claim that

was pending before the agency or Commission.<2>

EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that an

agency shall dismiss a complaint or portion thereof which raises a matter

that has not been brought to the attention of an EEO Counselor, and is

not like or related to a matter on which the complainant has received

counseling. The EEOC Regulations further direct an EEO Counselor to

inform a complainant that only matters related thereto may be raised in

a subsequent complaint filed with the agency. 29 C.F.R. �1614.105(b).

A later allegation or complaint is "like or related" to the original

complaint if the later allegation or complaint adds to or clarifies

the original complaint and could have reasonably been expected to grow

out of the original complaint during the investigation. See Calhoun

v. United States Postal Service, EEOC Request No. 05891068 (March 8,

1990); Webber v. Department of Health and Human Services, EEOC Appeal

No. 01900902 (February 28, 1990).

In the instant complaint, we find that the agency erred in dismissing

allegations (8) and (9) pursuant to 29 C.F.R. �1614.107(b). Both

allegations concern alleged discriminatory cc:mail messages discovered

by appellant. As the subject matter of allegation (5) also concerns

an alleged discriminatory cc:mail message, we find that allegations (8)

and (9) could have reasonably been expected to grow out of the original

complaint during the investigation. Consequently, allegations (8) and

(9) were improperly dismissed.

Accordingly, the agency's decision to dismiss allegations (1), (6), (7),

and (10) was proper, and is AFFIRMED for the reasons set forth herein.

The agency's decision to dismiss allegations (8) and (9) was improper

and is hereby REVERSED. These allegations are REMANDED to the agency for

further processing in accordance with this decision and the Order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision 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 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.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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. 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 (Z1092)

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:

Oct. 21, 1998

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations1Since we are affirming the agency's

dismissal of allegations (6) and (10) on the grounds that they fail

to state a claim, we will not address the agency's alternative

grounds for dismissal, i.e., that they were not brought to the

attention of an EEO Counselor and were not like or related to

matters that raised with the EEO Counselor.

2See footnote 1, supra.