John D. Gonzales, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01994398 (E.E.O.C. Nov. 8, 1999)

01994398

11-08-1999

John D. Gonzales, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


John D. Gonzales v. United States Postal Service

01994398

November 8, 1999

John D. Gonzales, )

Appellant, )

)

)

v. ) Appeal No. 01994398

) Agency No. 1G784000399

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision ("FAD") concerning his complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. �2000e et seq. The final agency decision was dated

April 2, 1999. The appeal was received May 10, 1999. Accordingly,

we presume the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is

accepted in accordance with EEOC Order No. 960, as amended. The FAD

accepted one of the appellant's contentions for investigation and

dismissed two others.

ISSUE PRESENTED

The issue on appeal is whether the agency erred when it dismissed two of

the appellant's contentions. The dismissed contentions are as follows:

1. The appellant alleged discrimination when on November 18, 1998 he

was informed that a letter of decision was being issued at the close of

business without giving him three extra days.

2. The appellant alleged discrimination when on October 28, 1998 he was

called into the Labor Relations office and informed that he was being

investigated concerning an incident on August 20, 1998 in which he was

seen at the main post office when he had called in sick that day.

ANALYSIS AND FINDINGS

On April 2, 1999, the agency issued a final decision dismissing

appellant's complaint. Specifically, we will consider the agency's

dismissal with regard to appellant's first allegation that he was denied

three extra days after being informed of a forthcoming letter of decision.

Agency argues that appellant was in fact given more than three extra days

in that the letter of decision was not issued until December 12, 1998.

Furthermore, the agency argues that this allegation was raised in

another complaint filed on December 12, 1998 under agency case number

1-G-784-0012-98. Accordingly, the agency dismissed this allegation as

identical to an allegation already pending.

The agency has not included any reliable evidence of complaint number

1-G-784-0012-98. We have no evidence of the existence, scope, or

disposition of that complaint. In Ericson v. Department of the Army,

EEOC Request No. 05920623 (January 14, 1993), the Commission stated that

the agency has the burden of providing evidence and/or proof to support

its final decisions. See Gens v. Department of Defense, EEOC Request

No. 05910837 (January 31, 1992). Therefore we REVERSE the dismissal of

allegation one (above) and remand it for the agency to provide evidence.

Turning now to the appellant's second dismissed allegation, that he

was investigated for being seen at the main post office after calling

in sick. The agency dismissed this allegation after the investigation

reveled that no action was in fact taken against the appellant.

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).

In allegation two, appellant alleges that he was investigated for

being seen at the post office on a day that he called in sick. We find

that appellant has not alleged a personal loss or harm regarding a

term, condition or privilege of employment as a result of the alleged

incident. Accordingly, the agency's decision to dismiss allegation two

(above) for failure to state a claim was proper and is AFFIRMED.

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 (T0993)

This decision affirms the agency's final decision 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 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.

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. 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 (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:

11/08/1999 ____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations