Eugene C. Carmichael, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 14, 1998
01981732 (E.E.O.C. Oct. 14, 1998)

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