0120092854
10-27-2009
John B. Knott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John B. Knott,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092854
Agency No. 1K-211-0035-09
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 21, 2009, dismissing his formal 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.
On April 27, 2009, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to discrimination on
the bases of race, sex, age, and in reprisal for prior EEO activity when:
(1) on February 28, 2009, he became aware that four management officials
that he had sent correspondence to dated February 18 and 25, 2009 had
not responded. Complainant states that these letters requested annual
and sick leave for his "continued absence;"
(2) on an unspecified date, he became aware that his Office Personnel
File (OPF) still contained a Proposed Removal Letter, (which had been
reduced to a 14-Day Suspension); and
(3) on an unspecified date, a review of his medical files revealed
medical documents previously submitted to management were not included
within the file.
On May 21, 2009, the agency issued a final decision dismissing all
three claims for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1).
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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,
.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).
Regarding claim (2), we note that the record contains a copy of the
Senior Plant Manager's affidavit dated May 4, 2009. Therein, Senior
Plant Manager stated that on May 9, 2009, complainant's proposed removal
letter was removed from his OPF. Therefore, we find that complainant
has failed to demonstrate that he suffered harm to a term, condition
or privilege of his employment. Therefore, we find that the agency's
dismissal of claim (2) was proper.
Regarding claims (1) and (3), we note that the record contains a copy a
letter from complainant's attorney to the agency, dated March 17, 2009.
Therein, the attorney stated that on February 18, 2009 complainant sent
letters to management officials "requesting the use of the balance of
his annual and sick leave. Specifically, complainant requested that
his annual and sick leave be applied starting in Pay Period 4 of 2009
and continuing on thereafter until exhausted. Even though the letter
was received, the request has been ignored." The attorney also stated
that on February 25, 2009, complainant sent another letter concerning
his leave request and "again, his request for usage of his leave has
not been processed."
Further, the attorney stated "since May 2006, the agency has requested
redundant medical information from [complainant], failed to process his
other leave requests, returned to [Complainant] his medical information
and related leave requests without processing and placed him on AWOL
status." We further note that in his formal complaint, complainant
requested that all medical documentations that he sent to management
officials be forwarded to the Postal Service Medical Unit. We therefore
find that complainant states a claim herein. Therefore, we find that
the agency improperly dismissed claims (1) and (3).
Based on a careful review of the record herein, the agency's decision
dismissing claim (2) for failure to state a claim is AFFIRMED.
The agency's decision dismissing claims (1) and (3) for failure to
state a claim is REVERSED and these claims are REMANDED to the agency
for processing in accordance with this decision and the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claims (claims (1) and
(3)) in accordance with 29 C.F.R. � 1614.108 et seq. 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, D.C. 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
October 27, 2009
__________________
Date
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0120092854
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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