01991248
10-22-1999
Dennis L. James, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis L. James v. United States Postal Service
01991248
October 22, 1999
Dennis L. James, )
Appellant, )
)
v. ) Appeal No. 01991248
) Agency No. 1-G-754-0110-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On November 20, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated November 5, 1998, pertaining
to 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. In his complaint, appellant alleged that he was subjected to
discrimination on the bases of race (African-American), color (black),
national origin, and in retaliation for associating with others who have
filed prior EEO complaints when:
On June 11, 1998, appellant was placed off-the-clock; and
On July 1, 1998, appellant was issued a notice of removal.
The agency dismissed appellant's basis of reprisal pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
Specifically, the agency found that appellant had not engaged in prior
EEO activity, and therefore could not allege the basis of reprisal.
On appeal, appellant contends that he suffered from reprisal because his
wife filed a prior EEO complaint. Appellant contends that he would not
have been terminated but for the EEO activity of his spouse.
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 (Apr. 22, 1994).
The retaliation provisions of the EEO statutes prohibit retaliation
against someone so closely related to or associated with a person,
who exercises her statutory rights that it would discourage or
prevent the person from pursuing those rights. Cantrell v. Department
of Transportation, EEOC Appeal No. 01983639 (Mar. 3, 1999) req. for
recons. pending EEOC Request No. 05990538. It would therefore be unlawful
for an agency to retaliate against an employee because his or her spouse,
who is also an employee, pursued the EEO complaint process. See e.g.,
DeMedina v. Reinhardt, 444 F. Supp. 573 (D.D.C. 1978).
The Commission finds that the prior EEO activity of appellant's spouse
is a proper basis of discrimination under Title VII. See Cantrell
v. Department of Transportation, supra; cf. Laber v. Department of
Defense, EEOC Appeal No. 01971368 (May 12, 1999) (prima facie analysis
and merit determination of reprisal discrimination conducted based
on EEO activity of complainant's spouse); Pankalla v. Department of
Transportation, EEOC Appeal No. 01966848 (May 4, 1998); Hull v. United
States Postal Service, EEOC Appeal No. 01955180. Accordingly, the agency's
decision is REVERSED, and the basis of reprisal is REMANDED for inclusion
in the further processing of appellant's complaint.
ORDER
The agency is ORDERED to notify appellant within fifteen (15) calendar
days of the date this decision becomes final that the basis of reprisal
will be included in the further processing of his complaint. A copy of
the agency's notice 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:
October 22, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations