0120091715
06-17-2010
Charles R. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Charles R. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120091715
Agency No. 1K297000109
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainants
appeal from the Agency's February 9, 2009, final decision concerning
his equal employment opportunity (EEO) complaint alleging racial
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal is timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission REVERSES the Agency's decision.
The record reveals that Complainant was an Automation Clerk at the
Agency's Greenville, South Carolina Processing & Distribution Center
when the alleged discriminatory action took place. The record reflects
that Complainant requested pre-complaint processing on October 16, 2008.
On January 12, 2009, Complainant was sent a Notice of Right to File
Individual Complaint of Discrimination (PS Form 2579-A). Complainant
filed a complaint of discrimination on January 26, 2009.
In his formal complaint, Complainant alleged discrimination based on
race (Caucasian) when, on a daily basis, African American employees were
assigned to work on "easier" machines, while he was required to work on
"harder" machines.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. The Agency found that Complainant failed
to demonstrate that he was an aggrieved employee who had suffered a
personal loss or harm with respect to a term, condition, or privilege
of employment.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
pertinent part, that an Agency shall dismiss a complaint 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).
Upon review, we find that the Agency improperly dismissed the complaint
for failure to state a claim. Although Complainant characterized his
complaint as alleging a hostile work environment, we find that it is more
appropriately characterized as alleging disparate treatment on the basis
of race. Complainant alleged in his formal complaint that the Postmaster
was giving co-workers, of a different protected class, preferential
treatment. Specifically, Complainant alleged that the Postmaster assigned
co-workers to "easier," preferential machines based upon their race.
Complainant alleged that he was required to rotate to other machines
daily; however, the employees on the preferred machines never rotated due
to the alleged disparate treatment. We find that Complainant has alleged
an injury or harm to a term, condition, or privilege of employment for
which there is a remedy. See Bell, Jr. v. United States Postal Service,
EEOC Appeal No. 0120082317 (August 28, 2009) (finding that a claim that
alleges racial discrimination in work assignments is sufficient to show
an injury or harm to a term, condition, or privilege of employment).
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED. The complaint is hereby REMANDED to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E0408)
The Agency is ordered to process the remanded claim in accordance with
29 C.F.R. �1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claim 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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999). If the Complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 29
C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1208)
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 tends 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 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 77960,
Washington, DC 20013. 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
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____6/17/10_____
Date
2
0120091715
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091715