01985696
09-10-1999
Mark F. Krinke, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mark F. Krinke v. United States Postal Service
01985696
September 10, 1999
Mark F. Krinke, )
Appellant, )
)
)
v. ) Appeal No. 01985696
) Agency No. 4-C-442-0131-98
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 June 10, 1998. Appellant received the final agency decision on
June 12, 1998. The appeal was postmarked July 11, 1998. 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 appellant's
complaint for failure to state a claim.
BACKGROUND
The record indicates that on March 18, 1998, appellant initiated
contact with an EEO Counselor regarding his complaint. On May 28, 1998,
appellant filed a formal complaint, alleging that he was the victim of
unlawful employment discrimination on the basis of reprisal for prior
EEO activity when:
Appellant was given a discussion regarding his work performance; and
Appellant became aware that the Postmaster, Green Springs, Ohio facility
had been shown appellant's EEO file by the Postmaster, Bellevue,
Ohio facility.
On June 10, 1998, the agency issued a final decision dismissing
appellant's complaint for failure to state a claim. Specifically,
the agency found that appellant was not aggrieved pursuant to 29
C.F.R. �1614.107(a).
A review of the record shows that appellant was employed as a Letter
carrier at the agency's Bellevue, Ohio facility. In mid-March appellant
was called into the office of Bellevue's Postmaster (PM1) where the
Postmaster (PM2) from the Green Springs, Ohio facility proceeded to have
a discussion with appellant on "things he observed that were wrong."
At that time, PM2 also stated that PM1 had shown him appellant's EEO
file and had read the entire file. PM2 was in the Bellevue facility to
conduct impartial route inspections.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides, 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. 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).
This Commission has consistently held that official discussions alone do
not render an employee aggrieved. See Miranda v. U.S. Postal Service,
EEOC Request No. 05920308 (June 11, 1992); Devine v. U.S. Postal Service,
EEOC Request No. 05910268, 05910269 and 05910270 (April 4, 1991). In the
present case, we find no assertion by appellant that the discussion
was recorded in any personnel or supervisory files, nor that it can be
used as a basis for any subsequent disciplinary action. See Divine,
supra. Thus, we must affirm the agency's dismissal of allegation (1).
We take special note, however, of allegation (2). In Crespo
v. U.S. Postal Service, EEOC Request No. 05920842 (September 17, 1993),
the Commission held that:
The agency has a continuing duty to promote the full realization
of equal employment opportunity in its policies and practices. 29
C.F.R. �1613.202. This duty extends to every aspect of agency personnel
policy and practice in the employment, advancement, and treatment of
employees. 29 C.F.R. �1613.203. Agencies shall, among other things,
insure that managers and supervisors perform in such a manner as to
effectuate continuing affirmative application and vigorous enforcement
of the policy of equal opportunity. 29 C.F.R. �1613.203(g).
In the instant case, PM1's disclosure of appellant's EEO files to PM2 does
not encourage "the realization of equal employment opportunity in the
workforce, and could have a potentially chilling effect on the ultimate
tool that employees have to enforce equal employment opportunity�the
filing of an EEO complaint." George v. U.S. Postal Service, EEOC Request
No. 05980451 (October 8, 1998). See also Torrez v. Social Security
Administration, EEOC 05950947 (March 10, 1998). No explanation is
given in the record for why PM1 disclosed appellant's EEO file to PM2,
nor is there any evidence which would indicate that PM2 had a need
to see appellant's EEO file. We find that such action could easily
be used to attempt to intimidate an employee from utilizing the EEO
complaint process or proceeding with his or her complaint. Therefore,
the Commission remands allegation (2) for investigation.
CONCLUSION
Based on our review of the record, we AFFIRM the final agency decision
with regards to allegation (1). We VACATE allegation (2) and REMAND
it for investigation. The agency shall comply with the Order of the
Commission stated below.
ORDER
Due to the nature of the allegation, the agency is directed to arrange an
investigation of the allegation which shall be conducted by the Director
of the Office of EEO Compliance and Appeals. The investigation should
consider whether and why PM1 had access to and was in possession of
appellant's EEO file. In addition the investigator should also determine
whether PM1 showed the files to PM2, and if so why.
If the agency does find that the EEO files were unlawfully disclosed
the agency shall take appropriate action, including:
1. Taking steps to ensure that the violation at issue herein does not
recur; and
2. Training the supervisor who committed the violation on management
responsibilities under EEO law.
The agency shall acknowledge to the appellant that it has received the
remanded allegation within thirty (30) calendar days of the date this
decision becomes final. The Director of the Office of EEO Compliance
and Appeals will conduct an investigation and issue a final decision
within ninety (90) calendar days of the days this decision becomes final.
The final agency decision shall include appeal rights to the Commission.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the final agency decision 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. �1614.10.
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. �l6l4.604(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:
September 10, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations