01996046
07-28-2000
Angel Rivera, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Angel Rivera v. United States Postal Service
01996046
July 28, 2000
Angel Rivera, )
Complainant, )
)
v. ) Appeal No. 01996046
) Agency No. 4-H-327-0191-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision (FAD) dismissing his complaint of unlawful employment
discrimination brought under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq.<1> We accept the appeal pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
After unsuccessful EEO counseling, complainant filed a formal complaint
on May 20, 1999, claiming that he was discriminated against on the bases
of race, religion, sex, and reprisal when his supervisor subjected him
to a pre-disciplinary interview on March 10, 1998, concerning audit
deficiencies in two zones.
In its FAD, the agency dismissed the complaint for failure to state a
claim, finding that a pre-disciplinary discussion of this type does not
render an employee aggrieved under the pertinent laws and regulations.
See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as EEOC Regulation
29 C.F.R. � 1614.107(a)(1)). On appeal, complainant argues that the
discussion at issue was followed-up by a Letter of Warning, such that
his complaint does state a claim.
This Commission has consistently held that official discussions alone do
not render an employee aggrieved. See Miranda v. United States Postal
Service, EEOC Request No. 05920308 (June 11, 1992); Devine v. United
States Postal Service, EEOC Request Nos. 05910268, 05910269 and 05910270
(April 4, 1991). In the present case, however, complainant has indicated
that the discussion was used as a basis for a subsequent disciplinary
action. In such circumstances, the Commission has held that where an
individual received EEO counseling on a proposed action, such as a
pre-disciplinary discussion, and the agency ultimately carries out the
proposed action, such as the issuance of a Letter of Warning, the
otherwise premature claim merges with the effectuated action. Siegel
v. Department of Veterans Affairs, EEOC Request No. 05960568 (Oct. 9,
1997) (citations omitted). The Commission has further held that this
merger occurs even if complainant has not filed a formal complaint on
the ultimate action. Anderson v. U.S. Postal Service, EEOC Appeal No.
01975635 (August 21, 1998). The Commission determines that
complainant's instant complaint regarding the pre-disciplinary
discussion merges with the issuance of the Letter of Warning, and must
be investigated by the agency.
The agency's decision to dismiss complainant's complaint was improper
and is REVERSED and REMANDED to the agency for further processing in
accordance with the Order below.<2>
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (Z1199)
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:
July 28, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2In its FAD, the agency indicated that although complainant had included
the basis of national origin during EEO counseling, his failure to include
it on his formal complaint was found to be an abandonment of the claim.
The Commission has previously held that the basis of discrimination (e.g.,
race, age, disability) can be changed or added during the complaint
process. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th
Cir. 1970); Davenport v. Department of the Treasury, EEOC Request
No. 05940631 (February 2, 1995). The fact that complainant failed to
include a basis on the formal complaint does not necessarily mean that
it is �abandoned� because it can be added during the complaint process
without raising a separate or new issue. See Dragos v. U.S. Postal
Service, EEOC Request No. 05940563 (January 19, 1995).