01a45505
07-12-2005
Michael J. Okin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael J. Okin v. United States Postal Service
01A45505
July 12, 2005
.
Michael J. Okin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45505
Agency No. 1F-921-0054-03
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated July 22, 2004, dismissing his complaint of unlawful
employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of disability and in reprisal for prior
EEO activity when:
On January 24, 2004, complainant was subjected to an investigative
interview;
On an unspecified date, complainant was denied LWOP (Leave without Pay)
for medical reasons;
On January 29, 2004, complainant was told he was not qualified to be on
the diversity committee; and
On August 28, 2003, the District Reasonable Accommodation Committee
denied his request for accommodation.
The agency issued a partial acceptance/dismissal decision on March 19,
2004, in which the agency dismissed claims (1) and (3) pursuant to
29 C.F.R. � 1614.107(a)(1) for failure to state a claim. In its final
decision dated July 22, 2004, the agency dismissed the remaining claims
((2) and (4)) pursuant to 29 C.F.R. � 1614.107(a)(7), on the grounds that
complainant failed to respond to the agency's request for information
during the investigation of his accepted claims. The agency found that
complainant responded to the investigator's request for an affidavit
by informing the investigator that he was sending the affidavit request
to the Administrative Judge (AJ) assigned to hear his prior complaint,
agency case number 1F-921-0019-02, EEOC Hearing Number 340-2004-00157X.
On appeal, complainant states that he requested consolidation of his
two complaints involving similar claims by the Administrative Judge
assigned to his prior complaint. Complainant argues that this would
bring consistency to any determination of his claims involving his
disability, specifically for matters pertaining to his requests for
leave and accommodation.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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, .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).
We concur with the agency that claims (1) and (3) fail to state a claim
because the actions described do not show that complainant was aggrieved
by the agency's actions. Complainant has not alleged that he received
any discipline, lost any pay, or otherwise suffered any injury as a
result of the incidents described in claims (1) and (3). We note
that complainant does not claim that he was denied the opportunity to
be on the diversity committee. Complainant only seems to be disputing
the remark by his supervisor in claim (3). We find these claims are
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). Furthermore,
we find that the instant complaint as a whole is insufficient to state
a claim of harassment.
The regulation set forth at 29 C.F.R. � 1614.107(a)(7) provides for the
dismissal of a complaint where the agency has provided the complainant
with a written request to provide relevant information or otherwise
proceed with the complaint, and the complainant has failed to respond to
the request within 15 days of its receipt or the complainant's response
does not address the agency's request, provided that the request included
a notice of the proposed dismissal. The regulation further provides
that, instead of dismissing for failure to cooperate, the complaint may
be adjudicated if sufficient information for that purpose is available.
Under the circumstances in this case, we find that the agency's dismissal
of claims (2) and (4) was improper. The record indicates, and complainant
does not dispute, that complainant received a single memorandum from the
agency requesting that he furnish an affidavit and indicating that failure
to do so within 15 days would result in dismissal of his complaint.
According to the agency, complainant failed to furnish his affidavit
within the requisite time frame, and therefore, his complaint should be
dismissed for failure to cooperate.
The Commission observes that complainant informed the agency that he had
mailed the affidavit request to the Supervisory Administrative Judge at
the Commission's District Office in Los Angeles, where his prior complaint
(agency case number 1F-921-0019-02) was pending. The record shows that
complainant, in fact, requested consolidation of his two complaints by
letter dated June 21, 2004, and, at the same time, provided a copy of
his motion to counsel for the agency.<1> Under the circumstances, we
find that the agency's dismissal of complainant's complaint for failure
to cooperate with one request for an affidavit was improper.
The agency's dismissal of claims (1) and (3) is AFFIRMED. We REVERSE
the agency's dismissal of claims (2) and (4) and we REMAND claims (2)
and (4) to the agency for further processing as directed herein.
ORDER (E0900)
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 (K0501)
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 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 12, 2005
__________________
Date
1Nothing in the record indicates complainant ever received a response
from the AJ. We note that as of June 30, 2005, agency case number
1F-921-0019-02 remains pending in the Hearings Unit of the San Diego
Area Office.