01A42876_r
06-30-2004
James B. Kroeger, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James B. Kroeger v. United States Postal Service
01A42876
June 30, 2004
.
James B. Kroeger,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42876
Agency No. 4H-350-0163-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 2, 2004, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Caucasian), sex (male), and reprisal for prior
EEO activity when:
On August 12, 2003, complainant was transferred to another work location;
and
On September 4, 2003, complainant was issued a seven-day suspension for
Improper Conduct.
The agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. The agency noted that
issues (1) and (2) were pursued in the grievance/arbitration forum,
specifically, through the Dispute Resolution Team (DRT) process.
The agency noted that with regard to issue (1), the parties agreed to
compensate complainant in the amount of $250.00. With regard to issue
(2), the agency stated that DRT agreed to expunge the suspension from
complainant's file upon receipt of the DRT decision. The agency concluded
that complainant's claims involved a collateral attack on the outcome
of another administrative dispute resolution process. Additionally,
the agency found that complainant abandoned some of the issues raised
in his request for pre-complaint processing.
The record reveals that complainant filed grievances regarding both the
August 2003 transfer to a new permanent rehabilitation assignment and
the Seven-Day Suspension issued September 4, 2003. The record contains
an October 9, 2003 decision regarding the August 2003 transfer, in which
the DRT agreed to rescind the August 2003 job offer and reinstate the
original October 29, 2002 job offer. Additionally, the DRT agreed to pay
complainant $250.00. The record contains a November 5, 2003 decision,
regarding the September 4, 2003 Seven-Day Suspension, in which the agency
agreed to expunge the Seven-Day Suspension from complainant's file upon
receipt of the DRT decision.
Upon review, we find the agency improperly dismissed complainant's
complaint for failure to state a claim. In claiming the August 2003
transfer and the September 2003 suspension were improperly issued
on discriminatory bases, we find complainant has stated a cognizable
complaint of discrimination. Although the record reveals that both the
August 2003 transfer and the September 2003 suspension were raised and
resolved in the grievance process, we do not find that complainant is
challenging the outcome of the DRT process. In addition, although the
record reveals that the parties reached an agreement to return complainant
to his original permanent rehabilitation assignment and to expunge the
Seven-Day Suspension, the agency has provided no evidence that these
actions were taken. Further, we note that as a remedy for his formal
complaint, complainant requests removal of the suspension from his file.
Accordingly, the agency's decision dismissing complainant's complaint is
REVERSED and the matter is REMANDED for further processing in accordance
with the Order below.
ORDER (E0900)
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 30, 2004
__________________
Date