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