0120091339
06-30-2009
Eric A. Burton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eric A. Burton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091339
Agency No. 4J-630-0006-09
DECISION
On February 2, 2009, the Equal Employment Opportunity Decision (EEOC
or Commission) received an appeal from complainant from final agency
decision (FAD) dated December 23, 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.
The appeal is deemed to have been filed on January 28, 2009, because its
postmark is not legible. 29 C.F.R. � 1614.604(b). The agency
argues that because the FAD is presumed to have been delivered within
five days after it was mailed, or by December 28, 2008, this means the
appeal was filed more than 30 days from receipt of the FAD, beyond the
deadline. 29 C.F.R. � 1614.402(a). In response, complainant contends
he received the appeal on December 29, 2008. While the FAD is dated
December 23, 2008, the record does not contain documentation of when it
was mailed, such as a certificate of mailing, a postmark, or a statement
from the mailer. Accordingly, the agency is not entitled to the five
day presumption, and the appeal is deemed timely filed.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African-American), sex (male), and
reprisal for prior protected EEO activity when he received a letter dated
September 3, 2008, which stated he was disqualified from the Voluntary
Early Retirement [Authority] (VERA) because he was pending removal.
The FAD dismissed the complaint for failure to state a claim.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant 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,
.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).
The FAD found that complainant was removed from the agency effective
October 13, 2007, that he is a former employee not challenging an action
which took place during his employment, and hence he does not have
standing to file an EEO claim, i.e., he is not an employee or applicant
for employment. Finding that VERA is a benefit extended to employees,
not former employees, the FAD concluded that complainant was not an
aggrieved employee who suffered a harm or loss with respect to a term,
condition or privilege of employment. It also found that the agency
took no action reasonably likely to deter EEO activity.
The letter removing complainant explained that if he appealed the action,
he would remain on the rolls, but in a nonpay, nonduty status until
the disposition of his case was reached either by settlement or through
exhaustion of his administrative remedies. At the time of the letter
denying complainant VERA, complainant had an appeal pending before the
Merit Systems Protection Board (MSPB). The FAD conceded that complainant
was still on the rolls until the termination of his pending appeals,
but found this was only for administrative purposes to maintain health
benefits. It found complainant was actually terminated October 13,
2007, and was a former employee.
On appeal, complainant summarily argues the FAD should be reversed.
In opposition to the appeal, the agency summarily argues the FAD should
be sustained. The agency's argument that complainant should not have
been treated as an employee for purposes of standing is not persuasive.
There is no notification of personnel action in the record showing
complainant was terminated effective October 13, 2007, nor is there
documentation showing he should be treated as an employee only for
purposes of maintaining health benefits. Denial of the VERA benefit for
an allegedly discriminatory reason states a claim. Winters v. Department
of the Navy, EEOC Appeal No. 01A21881 (December 16, 2002). The agency's
denial of VERA to complainant because he was pending removal goes to the
agency's explanation for denying VERA, or the merits of complainant's
claim, not whether he states a claim.
Accordingly, the FAD is reversed.
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 (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 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 (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
June 30, 2009
__________________
Date
2
0120091339
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091339