01972908
04-15-1999
James L. Brown, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James L. Brown v. United States Postal Service
01972908
April 15, 1999
James L. Brown, )
Appellant, )
)
v. ) Appeal No. 01972908
) Agency No. 1D-284-1007-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of �501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. �791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. �621 et seq. The final agency decision
was dated January 7, 1997. The appeal was postmarked February 10, 1997.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a))<1>,
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint.
BACKGROUND
The record indicates that on March 15, 1996, appellant contacted an EEO
Counselor alleging that a younger employee was rated higher than he was
on the new Promotion Eligibility Register (PER) on February 6, 1996,
and he had been denied promotion opportunities since 1988. Unable to
resolve the matters informally, appellant filed a formal complaint dated
July 22, 1996, alleging discrimination based on mental/physical disability
(complex behavioral problems/no central vision in left eye and knees and
elbow injury), age (56), and in reprisal for prior EEO activity when on
February 6, 1996, he was not properly rated on the Promotional Eligibility
Register (PER) for the position of Area Maintenance Technician, PS-08;
and in 1988, he was not properly evaluated denying him a proper entrance
score for the PER. Appellant indicated that as a result of the alleged
incidents, he was denied promotion opportunities.
On January 7, 1997, the agency issued a final decision dismissing
appellant's complaint. Therein, the agency defined the allegations as
whether appellant was discriminated against when: (1) on February 6,
1996, an [identified] individual was rated higher than appellant on the
new promotion eligibility register for the position of Area Maintenance
Technician, PS-8; and (2) he was denied a promotion. The agency,
specifically, dismissed allegation (1) for failure to state a claim since
appellant failed to show that he was harmed by the alleged incident.
The agency indicated that the identified individual had been ranked
higher than appellant since the promotion eligibility register dated May
26, 1992. The agency dismissed allegation (2) for failure to cooperate.
The agency, noting the fact that the subject allegation was not raised
during EEO counseling, stated that by letter dated August 30, 1996,
appellant was asked to clarify the subject allegation indicating his
intentions as to whether he was citing another issue or simply supplying
background information within 15 days of receipt of the letter, otherwise
the subject allegation would be dismissed. The agency indicated that
appellant received the letter on September 3, 1996, but he did not
respond.
On appeal, appellant contends that he is aggrieved when he was not
rated properly on February 6, 1996, and that he raised the allegation
concerning the denial of a promotion during EEO counseling.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. An agency shall accept a
complaint from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by that agency
because of race, color, religion, sex, national origin, age or disabling
condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission's Federal
sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Upon review, we find that the agency misdefined appellant's allegations.
Appellant's allegations should be defined as whether appellant was
discriminated against when: on February 6, 1996, he was not properly
rated on the Promotional Eligibility Register (PER) for the position
of Area Maintenance Technician, PS-08; and in 1988, he was not properly
evaluated denying him a proper entrance score for the PER. When properly
defined, we find that appellant's allegations state a claim.
EEOC Regulation 29 C.F.R. �1614.107(g) provides that the agency shall
dismiss a complaint or a portion of a complaint where the agency has
provided the complainant with a written request to provide relevant
information or other wise proceed with the complaint, and the complainant
has failed to respond to the request within 15 days of its receipt
or the complainant's response does not address the agency's request,
provided that the request included a notice of the proposed dismissal.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission notes that an agency's decision to invoke the provisions
of 29 C.F.R. �1614.107(g) should be made by the agency only when there
is a clear record of delay or contumacious conduct by the complainant.
Connolly v. Papachristid Shipping Ltd., et al., 504 F.2d 917 (5th
Cir. 1974). Furthermore, only in cases where the appellant has engaged
in delay or contumacious conduct and the record is insufficient to permit
adjudication has the Commission allowed a complaint to be dismissed for
failure to cooperate. See Raz v. U.S. Postal Service, EEOC Request
No. 05890177 (June 14, 1989); Delgado v. U.S. Postal Service, EEOC
Request No. 05900859 (October 25, 1990).
We find that when properly defined, the record contains sufficient
information to allow further processing of appellant's allegations.
Furthermore, we note that appellant's comments regarding the denial of
promotion opportunities appear to relate to the harm that he suffered as
a result of the incidents raised in his allegations and does not raise
a separate claim. Accordingly, the agency's dismissal on the grounds
of failure to cooperate was also improper and is hereby REVERSED.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint
is REVERSED. Appellant's allegations as defined herein are REMANDED to
the agency for further processing in accordance with the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
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. 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:
April 15, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date appellant received
the agency's final decision. Accordingly, since the agency has failed
to fulfill its obligation to transmit its final decision by a method
enabling the agency to show the date of receipt, the Commission presumes
that appellant's appeal was filed within thirty (30) days of receipt of
the agency's final decision. See, 29 C.F.R. �1614.402.