Mark F. Krinke, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 10, 1999
01985696 (E.E.O.C. Sep. 10, 1999)

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