Eric A. Burton, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 30, 2009
0120091339 (E.E.O.C. Jun. 30, 2009)

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