Charles Logan, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 23, 1998
01980770 (E.E.O.C. Oct. 23, 1998)

01980770

10-23-1998

Charles Logan, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Charles Logan, )

Appellant, )

)

v. ) Appeal No. 01980770

) Agency No. 4A-088-0128-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

On October 22, 1997, appellant filed a timely appeal of an October 3,

1997 final agency decision which dismissed his complaint for failure to

state a claim. The agency stated that appellant had not cited a basis

of discrimination, and, therefore, he had not alleged a matter within

the purview of the EEO process.

On appeal, appellant asserts that on September 25, 1997, he raised race

as a basis of discrimination to the EEO Counselor and that the Counselor

did not include race in the Counselor's Report. Appellant also indicates

in his appeal that he reported to the Counselor that he was treated

differently than a Latin American under similar circumstances.

Upon review, the Commission finds that the agency's dismissal of the

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

was improper. The Commission has previously held that a complainant

may delete or add bases of discrimination during the complaint process

without changing the identity of the claim. See Sanchez v. Standard

Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970). The Commission gives

broad application to the court's decision in Sanchez and complainants are

given liberal latitude to clarify the bases of discrimination in their

charges, and to add bases of discrimination after filing their charges.

Edwards v. Department of Defense, EEOC Request No. 05910830 (December

19, 1991); Castillo v. U.S. Postal Service, EEOC Appeal No. 01956860

(March 22, 1996) (basis of discrimination not made clear until appeal).

While in his September 25, 1997 complaint, appellant did not check off

any of the bases of alleged discrimination (i.e., race, color, religion,

national origin, sex, age, retaliation, and disability), on appeal,

appellant specifically raises the basis of race and asserts that he

informed the EEO Counselor that he was alleging discrimination based

on his race. In addition, one of two Information for Precomplaint

Counseling forms completed by appellant during EEO counseling reveals

that appellant alleged therein that he was treated differently from a

Hispanic male and a white female under similar circumstances. There is

no indication in the record that the EEO Counselor sought to clarify

the alleged bases of discrimination. We find that based on appellant's

identification of the protected groups of some comparatives, the EEO

Counselor should have sought clarification of the basis being raised.

Therefore, appellant's clear identification of race as a basis on appeal

is merely a clarification of his earlier allegation and is properly

permitted pursuant to Sanchez.<1> Consistent with our discussion,

the agency's final decision is REVERSED and the complaint is REMANDED

to the agency for further processing.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations of race

discrimination 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 (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. 23, 1998

DATE Ronnie Blumenthal, Director

Office of Federal Operations 1We note that in Haddon v. USPS, EEOC

Request No. 05950688 (April 4, 1996), the Commission did not allow the

complainant to correct a defective complaint (one without an identified

basis of discrimination) on appeal, where the complainant failed to

identify any bases during counseling or in his formal complaint despite

being informed of the necessity for doing so and the bases available.

The present case is distinguishable since appellant identified a basis

during counseling through his identification of the protected group of his

comparatives and it appears from the present record that the EEO Counselor

failed to properly assist appellant in clarifying his allegations.