0120063387
10-18-2006
James E. Swink, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James E. Swink, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120063387
Agency No. 4E-640-0057-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision (FAD) dated August 8, 2006, 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.1 and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In his complaint, complainant alleged that he
was subjected to discrimination based on his age (born in 1952) and
reprisal for prior EEO activity when:
1. The agency did not grant his requests in his letters to it dated
January 15, 2006 and April 2, 2006 for back pay and restoration of
benefits in connection with his December 10, 1999 termination and April
30, 2005 rehire,
2. on March 16, 2006, he was issued a letter of warning in connection
with delaying mail,
3. on April 4, 2006, he was subject to a mail count and inspection, and
4. on April 28, 2006, management monitored him performing his duties.
The FAD defined the complaint as constituting only claim 2 based on
age discrimination. It noted that that while the complaint contained
other dates, complainant was not counseled on incidents which occurred
on those dates and the complaint contained no information regarding what
occurred on those dates. It advised complainant to seek EEO counseling on
incidents relating to those dates if he wished to pursue the matters.
It dismissed claim 2 for failure to state a claim. It reasoned that
the letter of warning was rescinded pursuant to a grievance resolution.
The resolution provided that the letter of warning would be removed from
complainant's file on May 16, 2006 if there was no more disciplinary
actions by then.
A review of the record shows that complainant submitted two pre-complaint
counseling forms to the EEO office. The first was dated April 16, 2006
and stamped received by the EEO office on April 19, 2006, and the second
was dated April 18, 2006 and stamped received by the EEO office on April
21, 2006. The first form contains claim 2, and the second form refers
to claims 1 and 3. Accordingly, we disagree with the finding in the
FAD that complainant did not previously seek EEO counseling on claims
1 and 3.2 Claim 4 was properly raised in the complaint because it is
like and related to claim 3. 29 C.F.R. � 1614.105(b)(1).
In his April 2, 2006 letter to the agency, complainant contended that he
was "vindicated" by a federal court order regarding his 1999 termination,
and was rehired as partially restored on April 30, 2005. He contends that
he should have received back pay and benefits in accordance with being
reinstated, but this did not occur. The record contains insufficient
information on this matter to make a ruling on whether this claim is
within the jurisdiction of the EEO process. Accordingly, this claim is
remanded to the agency in accordance with the order below.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra.
A letter of warning is reasonably likely to deter protected activity. The
same can be said of claims 3 and 4, given that they occurred close in time
to the letter of warning and involve monitoring of complainant's work.
The letter of warning grew out of an inspection of complainant's work.
Accordingly, claims 2, 3 and 4 are remanded for investigation.
ORDER
The agency is ordered to process the remanded claims 2, 3 and 4 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.
The agency is ordered gather sufficient information from complainant to
make a determination on whether to accept or dismiss claim 1. If the
agency decides to dismiss claim 1, it shall issue a FAD appealable to
this office doing so. The agency shall issue a letter accepting claim 1
or a FAD dismissing claim 1 within 90 calendar days after this decision
becomes final.
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
regarding claims 2, 3 and 4; and the letter accepting or FAD dismissing
claim 1 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
October 18, 2006
__________________
Date
1 Complainant's complaint includes the allegation that he was
discriminated against based on reprisal for Title VII and ADEA prior EEO
activity. The record, however, only shows prior ADEA (age discrimination)
activity. However, since the record is not fully developed, this matter
should be clarified by the parties.
2 Claims 1, 3 and 4 are only briefly referenced in the complaint, and the
same is true for claims 1 and 3 in the pre-complaint counseling form.
On appeal, complainant provided sufficient information to allow us to
fully define the claims.
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01200633
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120063387