Arthur C. Walker, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 8, 1999
01990304 (E.E.O.C. Oct. 8, 1999)

01990304

10-08-1999

Arthur C. Walker, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Arthur C. Walker v. United States Postal Service

01990304

October 8, 1999

Arthur C. Walker, )

Appellant, )

) Appeal No. 01990304

v. ) Agency No. 4-G-780-0295-98

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision (FAD) concerning 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 appeal is accepted in

accordance with EEOC Order No. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed a portion

of appellant's complaint for failure to consult with an EEO Counselor

and for failure to state a claim.

BACKGROUND

Appellant filed a formal complaint on July 31, 1998, alleging

discrimination on the bases of race (African-American), color (Black)

and reprisal when:

On March 17, 1998, appellant was charged with Leave Without Pay (LWOP)

as opposed to sick leave which he had requested. When appellant raised

this issue with the station manager, appellant was referred to Employee

Assistance Program (EAP).

On October 12, 1996, after nearly four years of requesting reassignment,

appellant was granted a reassignment/transfer to a letter carrier position

at a higher pay level.

On or about October 28, 1994, appellant was given a letter of warning

(LOW) for attendance issues.

On August 9, 1997, appellant called his supervisor to request emergency

leave due to a family situation. Upon his return on August 13, 1997,

appellant was written up for emergency annual leave for August 11, 1997,

and LWOP for August 12, 1997.

In June 1998, appellant received a demand letter for $246.00 resulting

from an overpayment during his reassignment/transfer which occurred in

October 1996.

In its FAD, the agency accepted the LWOP portion of allegation (1)

for investigation. The agency dismissed the EAP portion of allegation

(1) for failure to state a claim. Allegations (2)-(5) were dismissed

for failure to raise these allegations to the EEO Counselor. The agency

also instructed appellant that if he wished to pursue these allegations,

that he should contact an EEO Counselor within fifteen days of receiving

the FAD. This appeal followed.

ANALYSIS AND FINDINGS

Allegations (2)-(5)

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. 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 Scher v. United States Postal Service, EEOC Request No. 05940702

(May 30, 1995).

Upon careful review of the record, we find that these allegations were

not raised to the EEO Counselor and are not like or related to allegation

(1) which was raised to the EEO Counselor. Further, we find that these

additional allegations do not add to or clarify allegation (1). As such,

we find that allegations (2)-(5) were properly dismissed by the agency

pursuant to 29 C.F.R. �1614.107(b).

Dismissed Portion of Allegation (1)

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, 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;

�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).

In its FAD, the agency dismissed a portion of allegation (1). In that

portion, appellant alleges discrimination when he referred to EAP by

the station manager. We find that appellant fails to state a claim.

In reaching this determination, we distinguish the present situation from

that presented in Hatchett v. United States Postal Service, EEOC Request

No. 05950758 (May 16, 1997) (finding that a referral to EAP stated a

claim on the grounds that the referral was part of a harassment claim)

and Hansen v. United States Postal Service, EEOC Request No. 05980707

(April 29, 1999) (holding that an order to see an EAP stated a claim

because appellant alleged she was ordered as a term of her employment to

drive twenty miles away during rush hour to see the EAP). We note that

in both Hatchett and Hansen, the complainants alleged that the referral

to EAP was part of a harassment claim. In the present case, appellant

alleges he was discriminated against when he was referred to the EAP.

Therefore, we find that this portion of appellant's allegation was

properly dismissed pursuant to 29 C.F.R. �1614.107(a).

CONCLUSION

Accordingly, the decision of the agency is AFFIRMED.

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 (R0993)

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. 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.

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. 8, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations