Dwayne A. Sloan, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 22, 1999
01992728_r (E.E.O.C. Nov. 22, 1999)

01992728_r

11-22-1999

Dwayne A. Sloan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Dwayne A. Sloan, )

Complainant, )

)

v. ) Appeal No. 01992728

) Agency No. 1-G-771-0138-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On February 17, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by him on

January 27, 1999, pertaining to his complaint of unlawful employment

discrimination in violation of �501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. �791 et seq. <1> In the complaint, he alleged that

he was subjected to discrimination on the basis of physical disability

when his request to transfer to the San Antonio Office was denied,

but was approved later the same day. Complainant also alleged that the

manager wrote a negative comment on the approval, with which complainant

did not agree.

The agency dismissed the complaint for failure to state a claim.

Specifically, the agency found that complainant was not aggrieved because

his transfer request ultimately was approved. The agency also found

that complainant suffered no concrete harm from the negative comment on

the approved transfer form.

On appeal, complainant argues that although his transfer release from

his former duty station was �finally approved,� the transfer was not

accepted or approved by his destination office (San Antonio Office).

Further, complainant's appeal form indicates that he is currently living

in San Antonio, but is not employed with the agency -- complainant listed

a private business where he could be reached by phone at work.

The record includes a copy of complainant's disapproved transfer,

dated June 13, 1998. This document refuses to release complainant

for �transfer consideration� because of �unsatisfactory attendance.�

The record also contains the approval form, also dated June 13, 1998.

This approval releases complainant for �transfer consideration� by the

San Antonio office. At the bottom of the approval, a hand-written note

states, �I am not in agreement with approval . . . due to complainant's

ability to maintain attendance. . . .�

EEOC Regulations require dismissal of a complaint that fails to state

a claim. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified at 29

C.F.R. �1614.107(a)(1)). 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.

See 29 C.F.R. ��1614.103;.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).

Complainant clearly was aggrieved when his transfer initially was

denied, even though he later was approved for transfer consideration.

Although complainant's old duty station released complainant for

transfer consideration to San Antonio, the record does not indicate

that complainant's transfer ultimately was completed. To the contrary,

complainant contends that the transfer was not accepted by the San Antonio

office, and it appears that complainant is not employed with the agency

in San Antonio. Further, the agency has provided no evidence that

the transfer was completed. Therefore, the agency's characterization

of complainant's claim is improper, and should include the following:

Complainant alleges that he was subjected to discrimination on the basis

of physical disability when the agency issued a release for transfer

consideration to San Antonio that included negative comments about

complainant, resulting in complainant's transfer ultimately not being

approved by the San Antonio office.

Once properly framed, the complaint alleges harm to a term, condition,

or privilege of employment, and thus, states a claim pursuant to 29

C.F.R. �1614.107(a)(1).

CONCLUSION

Accordingly, the agency's decision is REVERSED, and the complaint is

REMANDED for investigation.

ORDER

The agency is ORDERED to process the remanded claim as defined above in

accordance with 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29

C.F.R. �1614.108). The agency shall acknowledge to 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 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 (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). All requests and arguments must 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

timely filed if it is received by mail within five days of the expiration

of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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).

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:

November 22, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________ date

__________________________

Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.