Frederick T. Campbell, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 19, 2009
0120090131 (E.E.O.C. Feb. 19, 2009)

0120090131

02-19-2009

Frederick T. Campbell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Frederick T. Campbell,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090131

Agency No. 1E-981-0047-08

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final decision, dated

September 4, 2008, pertaining to 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. and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. The Commission accepts the appeal in accordance with 29

C.F.R. 1614.405.

Believing that he was subjected to discrimination, complainant contacted

the EEO office. Informal efforts to resolve complainant's concerns

were unsuccessful. Subsequently, complainant filed a formal complaint

based on race, sex and age. The agency framed the claim as follows:

On April 29, 2008, complainant was informed that he couldn't work at

Seattle P&DC (and would have to go back to the Air Mail Center).

In its decision, the agency dismissed the complaint on the ground that

it alleged dissatisfaction with the processing of a prior complaint.

The agency reasoned that the challenged action was taken in conjunction

with the settlement of Case No. #1E-985-0002-06. Further, if complainant

was alleging breach of the settlement agreement, the agency advised him to

present the allegation in writing to the EEO office. Therefore, finding

that the complaint was an improper "spin-off", the agency dismissed the

matter pursuant to 29 C.F.R. 1614.107(a)(8).

EEOC Regulation 29 C.F.R. 1614.107(a)(8) provides that an agency shall

dismiss claims alleging dissatisfaction with the processing of a prior

complaint. Dissatisfaction with the EEO process must be raised within the

underlying complaint, not as a new complaint. See Management Directive

110 (MD-110) 5-23, 5-25 to 5-26 (Nov. 9, 1999).

A review of the formal complaint shows that complainant believed he was

discriminated against when his request to return to the Seattle P&DC

was denied. According to the Counselor's Report, complainant asserted

that at the Seattle P & DC he would have had a higher rate of pay as a

tugger driver. Further, the counselor's inquiry noted that management

believed "the issue is really about complainant's last chance agreement",

wherein complainant agreed to remain an unassigned full time mail handler

at Seattle AMC.

The Commission finds that the agency has inappropriately addressed the

merits of complainant's complaint, without a proper investigation as

required by the regulations. We find that the agency's articulated

reason for the action in dispute, i.e., that a January 19, 2007 Last

Chance Agreement required complainant to work at Seattle AMC, goes to the

merits of complainant's complaint, and is irrelevant to the procedural

issue of whether he has stated a justiciable claim under Title VII.

See Osborne v. Department of the Treasury, EEOC Request No. 05960111

(July 19, 1996); Lee v. United States Postal Service, EEOC Request

No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal

Service, EEOC Request No. 05910642 (August 15, 1991).

Accordingly, the agency's decision to dismiss complainant's complaint

was improper, and is hereby REVERESED. The complaint is REMANDED to

the agency for further processing in accordance with this decision and

the Order below.

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

February 19, 2009

__________________

Date

2

0120090131

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120090131