01993622
01-11-2000
Peter Quercia, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Peter Quercia, )
Complainant, )
)
v. ) Appeal No. 01993622
) Agency No. 4-F-950-0119-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On March 31, 1999, complainant filed an appeal with this Commission
from a final agency decision (FAD) dated October 1, 1998, pertaining
to his complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq.<1> The Commission accepts the appeal as timely
in accordance with EEOC Order 960, as amended.<2> In his complaint,
complainant alleged that he was subjected to discrimination on the basis
of age when:
On November 14, 1997, complainant was terminated from his probationary
clerk position at the Santa Cruz Post Office; and
On March 26, 1998, complainant received a telephone call from a Postal
Inspector who threatened him with criminal prosecution.
The agency dismissed claim (1) for alleging a matter raised in a
prior complaint of discrimination, Agency Number 4-F-950-0057-98, and
dismissed claim (2) for failure to state a claim. Specifically, the
agency found that complainant requested counseling on November 20, 1997,
alleging that he was wrongfully terminated in Agency No. 4-F-950-0057-98.
The agency found that complainant received a notice of right to file a
formal complaint of discrimination for 4-F-950-0057-98 on January 16,
1998, but never filed a formal complaint. Then, according to the agency,
complainant again requested counseling on February 17, 1998, for claims
(1) and (2), which the agency assigned case no. 4-F-950-0119-98. The
agency then mailed its final interview and notice of right to file a
complaint on April 23, 1998. On May 9, 1998, according to the agency,
complainant filed a formal complaint for 4-F-950-0119-98.
Regarding claim (2), the agency found that complainant was not an employee
or applicant for employment when the incident occurred, because he was
terminated in 1997. Therefore, the agency found that complainant was
not an �aggrieved employee� covered by the EEO process.
The record includes a copy of the Information-for-Precomplaint-Counseling
form for 4-F-950-0057-98, and a separate form for 4-F-950-0119-98.
Both raised the issue alleged in claim (1). Regarding issue (2),
complainant explains that he was threatened with criminal prosecution
for putting others' �junk mail� in a mail bin. Complainant also alleges
that a postal inspector called his house, asked about his children,
and read his personal mail to him over the phone.
The record also includes the notice of right to file a complaint for both
complaints, and a return receipt card for the notice in 4-F-950-0057-98,
dated January 16, 1998. The record does not include a formal complaint
for 4-F-950-0057-98.
ANALYSIS AND FINDINGS
The Commission finds that the agency's dismissal of issue (1) was
improper. EEOC Regulations provide for the dismissal of a complaint
that states the same claim pending before or decided by the agency
or Commission. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
as and hereinafter referred to as 29 C.F.R. �1614.107(a)(1)). Although
complainant raised the same matter in two separate counseling sessions,
he did not file two formal complaints regarding the same incident. The
agency never decided Agency Number 4-F-950-0057-98, because no complaint
was filed on the matter. Accordingly, the agency cannot dismiss claim
(1) of the present complaint for alleging the same matter raised in a
prior complaint of discrimination. The Commission's decision, however,
does not address the timeliness of complainant's formal complaint with
regard to his receipt of the notice of right to file claim (1).
EEOC Regulation 29 C.F.R. �1614.107(a)(1) also 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 22, 1994).
A former employee has standing to file an EEO complaint alleging that
actions taken by an agency subsequent to his termination constitute
reprisal for engaging in protected EEO related activity that arose out
of the previous employment with the agency, where a nexus is shown
between the employee's previous employment with the agency and the
alleged subsequent action by the agency. Kaiser v. Office of Personnel
Management, EEOC Request No. 05950289 (Nov. 8, 1996) (citations omitted);
see generally Robinson v. Shell Oil Co., 519 U.S. 337, 345-346 (1997)
(finding that a negative job reference which former employee contends was
sent in retaliation for prior protected activity states a cognizable
claim of discrimination). In the present case, the matters rise
out of complainant's former employment, but the matter alleged still
fails to state a claim. Claim (2) involves a threat, unaccompanied by
any concrete harm. The Commission has held that remarks or comments
unaccompanied by concrete harm do not render a complainant aggrieved.
See Pruneda v. United States Postal Service, EEOC Request No. 05950736
(Nov. 1, 1996) (finding that supervisor's statement regarding possible
future disciplinary action fails to state a claim); Simon v. United States
Postal Service, EEOC Request No. 05900866 (Oct. 3, 1990) (finding that
threat of removal does not render complainant aggrieved when the action
is not accompanied by concrete removal action). Therefore, claim (2)
fails to state a claim.
CONCLUSION
Accordingly, the agency's dismissal of claim (1) is REVERSED, and the
matter is REMANDED for further processing. The agency's dismissal of
claim (2) is AFFIRMED.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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. �
1614.503(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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
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:
January 11, 2000
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:
_______________ __________________________
Date Equal Employment Assistant
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.
2The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date complainant
received the agency's FAD. Accordingly, since the agency failed to
submit evidence of the date of receipt, the Commission presumes that
complainant's appeal was filed within thirty (30) days of receipt of
the FAD. See, 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.402).