01990941
11-19-1999
Joseph A. Chenkin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joseph A. Chenkin, )
Complainant, )
)
v. ) Appeal No. 01990941
) Agency No. 1C-174-0008-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant 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.<1> The final agency decision was received by
complainant on October 14, 1998. The appeal was postmarked November
10, 1999. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at and hereinafter referred to as 29
C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
Complainant contacted an EEO counselor on July 16, 1999, regarding
claims of discrimination. Specifically, complainant alleged that he
was discriminated against when on July 6, 1998 the agency responded to
his request for information regarding why the written portion of his
Associate Supervisor Test was rated �not qualified.�
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on September 8, 1998, complainant filed a formal complaint
alleging that he was the victim of unlawful employment discrimination
on the bases of race (White), and sex (male).
On October 8, 1998, the agency issued a final decision dismissing
complainant's complaint for failing to state a claim. Specifically,
the agency determined that complainant had not demonstrated that he had
harmed by the agency's actions or that he had suffered with respect to
a term, condition or privilege of his employment.
In 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. �1614.107(a)(1), the regulations provide,
in relevant part, that an agency shall dismiss a complaint, or portion
thereof, 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. See
64 Fed. Reg. 37,644, 37,655 (1999)(to be codified at and hereinafter
referred to as 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.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
A review of the record persuades the Commission that the agency should
have investigated this complaint and not dismissed it for failure to
state a claim. The only questions for the agency to consider are whether
complainant is aggrieved and whether the complaint alleges employment
discrimination on a basis covered by EEO statues. If the answer is yes,
then the agency must accept the complaint for processing, regardless of
what it thought of its merits. See Odoski v. United States Department
of Energy, EEOC Appeal No. 01901496 (April 16, 1990).
A fair reading of complainant's complaint reveals that he is alleging that
because of his race and sex, the agency discriminated against him when it
rated the written portion of complainant's Associate Supervisor Test �not
qualified.� Complainant is, in essence, claiming that the agency engaged
in discriminatory behavior in its review of the written portion of an exam
taken for the purpose of obtaining a supervisory position. We find that
such an claim is sufficient to state a claim under EEOC Regulations. The
agency's dismissal of complainant's complaint based on failure to state a
claim was inappropriate. Accordingly, the agency's decision to dismiss
complainant's complaint is hereby REVERSED. The complaint is REMANDED
to the agency for further processing in accordance with this decision
and the Order below. Both parties are advised that the decision herein
is not a decision on the merits of complainant's complaint.
ORDER (E1092)
The agency is ORDERED to process the remanded claims 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.
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999)(to be codified and hereinafter referred
to as 29 C.F.R. ��1614.407, 1614.408, and 29 C.F.R. �1614. 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)
(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition
for enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified and hereinafter referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at and hereinafter referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)(to be codified at and hereinafter
referred to as 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).
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:
November 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.