01981732
10-14-1998
Eugene C. Carmichael, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Eugene C. Carmichael, )
Appellant, )
)
v. ) Appeal No. 01981732
) Agency No. 4G-780-0088-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
defined the issues in appellant's complaint. Furthermore, we find
that the agency properly dismissed the appellant's amended allegations,
pursuant to EEOC Regulation 29 C.F.R. �1614.107(b), for raising matters
that were not brought to the attention of a Counselor and were not like
or related to a matter that was brought to the attention of a Counselor.
Additionally, we find that the agency properly excluded reprisal as a
basis for appellant's complaint.
A review of the record discloses that appellant alleged during counseling
only that he was subjected to discrimination on the bases of race
(Black) and national origin (African-American) when on October 25, 1996,
he was terminated from his position with the agency. By letter dated
March 12, 1996, appellant sought to amend his complaint to include
allegations that he was subjected to racial slurs and innuendos and
other race-based derogatory statements. Further, appellant sought to
include reprisal as a basis for his complaint, based on his refusal to
capitulate and acquiesce to the discriminatory treatment he received.
By letter dated March 21, 1997, the agency issued a decision refusing
to amend appellant's complaint to include the additional allegation,
and instructed appellant to initiate contact with an EEO Counselor if
he wished to pursue the matter. The agency did not address appellant's
request to add reprisal as a basis for his complaint.
Based on a review of the record, we find that appellant did not raise
the allegation that he was subjected to racial slurs and epithets.
Additionally, we find that this allegation is not like or related to
the allegation raised by appellant in his original complaint because it
does not add to or clarify the original complaint and could not have
reasonably been expected to grow out of it during the investigation.
See Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990); Webber v. Department of Health and Human Services,
EEOC Appeal No. 01900902 (February 28, 1990). Consequently, the agency
properly refused to amend appellant's complaint to include the additional
allegation.
The Commission notes that the agency failed to address appellant's
request that reprisal be added as a basis for his complaint, and we
deem the agency's action to be tantamount to a dismissal of that matter.
Appellant's submissions on appeal reveal that the EEO Office was notified
of the basis in the March 12, 1996 letter in which appellant sought to
amend his complaint. The Commission has held that a complainant may
allege discrimination on all applicable bases, including sex, race,
national origin, color, religion, age, disability and reprisal, and may
amend his or her complaint at any time, including at the hearing, to add
or delete bases without changing the identity of the claim. See Sanchez
v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970); Dragos v. United
States Postal Service, EEOC Request No. 05940563 (January 19, 1995).
However, in the instant case, there is nothing in the record indicating
that appellant engaged in prior protected activity. Consequently, the
agency properly dismissed reprisal as a basis for appellant's complaint.
Accordingly, the agency's final decision is AFFIRMED.
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 (S0993)
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:
Oct. 14, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations