01976917
10-27-1998
Jorge Sanchez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Jorge Sanchez v. United States Postal Service
01976917
October 27, 1998
Jorge Sanchez, )
Appellant, )
)
v. ) Appeal No. 01976917
) Agency No. 1-G-771-0046-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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 received by
appellant on August 18, 1997. The appeal was postmarked September 15,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint on the grounds that it raised matters which
had not been brought to the attention of an EEO Counselor.
BACKGROUND
Appellant contacted an EEO counselor on February 3, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
he was discriminated against when on January 17, 1997 he was replaced
by another employee in the Texas Pouch Rack Section of the agency.
Informal efforts to resolve appellant's concerns were unsuccessful.
Accordingly, on March 12, 1997, appellant timely filed a formal
complaint of discrimination on the bases of race (Hispanic), sex (male)
and retaliation (prior EEO activity). Therein, appellant alleged that
his supervisor had been harassing him in retaliation for complaining
about not receiving overtime assignments.
Appellant alleged that as a result of said harassment, (1) he was
displaced to another work area and (2) he was issued a seven day
suspension.
On June 2, 1997, the agency issued its final decision dismissing a portion
of appellant's complaint on the grounds that it raised matters not raised
during EEO couseling. The FAD determined that in appellant's February
3, 1997 counseling, the only matter discussed was allegation (1) that
on January 17, 1997 appellant was displaced to another work area and
replaced with another employee. The FAD further determined that appellant
had not discussed his seven day suspension or his complaints regarding
overtime assignments during his EEO counseling on February 3, 1997.
The agency accepted allegation (1) for investigation and indicated that
appellant should contact an EEO Counselor within fifteen (15) days of
receipt of the FAD, regarding the dismissed issues.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(b), states in pertinent part, that
an agency shall dismiss a complaint or a portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor, and
is not like or related to a matter on which the Complainant has received
counseling. In determining whether a subsequently raised allegation is
like or related to the original complaint, we must consider "whether
the later allegation or complaint adds to or clarifies the original
complaint and could have reasonably been expected to grow out of the
original complaint during the investigation." Scher v. United States
Postal Service, EEOC Request No. 05940702 (May 30, 1995).
The record reflects that during EEO counseling, appellant discussed only
one incident of alleged discrimination regarding his being replaced with
another employee on January 17, 1997. The Commission determines that
appellant's suspension and overtime allegations were not raised with
an EEO counselor prior to filing the March 12, 1997 formal complaint.
We further determine that said allegations are not like or related to
matters raised by appellant during counseling and do not clarify or add
to appellant's allegation regarding another employee being placed in
his position.
CONCLUSION
Accordingly, the agency's decision dismissing a portion of appellant's
complaint is hereby, AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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 (S0993)
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. 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:
October 27, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations