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.