01990034
12-28-2000
James B. Reeves, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James B. Reeves v. U.S. Postal Service
01990034
December 28, 2000
.
James B. Reeves,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01990034
Agency No. 1-G-754-0073-98
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated September 22, 1998, dismissing his complaint of unlawful
employment discrimination brought under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
In his complaint, complainant claims that the agency discriminated
against him on the bases of race, religion, sex, and disability when he
was issued a Proposed Letter of Warning in Lieu of a Time Off Suspension
(PLOW) on April 3, 1998.
The agency dismissed the complaint finding that the PLOW was merely
a proposal to take a personnel action, and that no discipline had
actually been effected against complainant. Complainant now appeals
this determination.
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides, in part, that
the agency shall dismiss a complaint, or a portion of a complaint, that
alleges that a proposal to take a personnel action, or other preliminary
step to taking a personnel action, is discriminatory. This provision
requires the dismissal of complaints that allege discrimination �in any
preliminary steps that do not, without further action, affect the person:
for example, progressive review or improvement periods that are not a
part of any official file on the employee.� See Butler v. U.S. Postal
Service, EEOC Appeal No. 01996185 (November 8, 1999).
Here, review of the record confirms that complainant received no
discipline in conjunction with the PLOW at issue. Moreover, although
complainant indicates that the PLOW is being maintained as a record,
we note that the Commission has previously held that a complainant's
speculation that records were kept, without evidence in support thereof,
is insufficient to render the individual aggrieved for purposes of the
EEOC Regulations. See Pruneda v. U.S. Postal Service, EEOC Request
No. 05950736 (October 31, 1996).
Accordingly, we find that the agency properly dismissed the instant
complaint, and we AFFIRM that determination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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
December 28, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.