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.