Daniel C. Coker, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 5, 2009
0120091186 (E.E.O.C. May. 5, 2009)

0120091186

05-05-2009

Daniel C. Coker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Daniel C. Coker,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091186

Agency No. 1J626001508

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated December 24, 2008, dismissing his complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Upon

review, the Commission finds that complainant's complaint was improperly

dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state

a claim. In a complaint dated December 17, 2008, complainant alleged

that he was subjected to discrimination on the basis of reprisal for

prior protected EEO activity under Title VII when: (1) On July 1, 2008,

he was notified that he would be serving an off-the-clock suspension;

(2) On September 9, 2008, he was notified that he would be serving an

off-the-clock suspension; and (3) On October 1, 2008, he was sent a

letter threatening to take away his job.

On appeal, complainant asserts that these claims are not the same as

previously raised because the factors of discrimination are different.

He states "One claims racial discrimination and the other two claim

retaliation." That is, he mainly asserts that he had alleged a different

basis with respect to the prior complaint, which contained the same

14-day suspension claim.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that

the agency shall dismiss a complaint that states the same claim that is

pending before or has been decided by the agency or Commission.

Concerning claims 1 and 2, the record shows that complainant had

initiated counseling on an identical complaint on May 19, 2008 in Case

Number IJ-626-0010-08 regarding a 14-day suspension dated May 14, 2008.

A settlement agreement was reached on June 5, 2008. Complainant alleged

the agreement had been breached when he received a letter informing him

that he would be serving the suspension. A Letter of Determination with

appeal rights was subsequently issued in regards to his breach claim.

Therefore, the agency's dismissal of claims 1 and 2 was proper for

stating the same claim that was previously resolved by the agency.

The Commission has stated that adverse actions need not qualify as

"ultimate employment actions" or materially affect the terms and

conditions of employment to constitute retaliation. Lindsey v. United

States Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999)

(citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead,

the statutory retaliation clauses prohibit any adverse treatment that

is based upon a retaliatory motive and is reasonably likely to deter

the charging party or others from engaging in protected activity. Id.

Regarding claim 3, the Commission find's that this is a viable claim of

reprisal because complainant has alleged that the agency's issuance of

this letter was attributed to his prior EEO activity, and is reasonably

likely to deter him or others from engaging in protected activity.

Thus, the agency's dismissal of claim 3 was improper and is reversed.

Accordingly, the agency's final decision dismissing complainant's

complaint is affirmed in part and reversed in part. 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 claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims 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 (K0408)

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 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 tend 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 (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, 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

__________________

Date

May 5, 2009

2

0120091186

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091186