0120101174
06-17-2010
Philip K. Richardson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120101174
Agency No. 4E800019709
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 18, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission finds
that Complainant's complaint was improperly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim.
BACKGROUND
In his complaint, Complainant alleged that he was subjected to
discrimination on the bases of race (Caucasian), sex (male), color
(White), and reprisal for prior protected EEO activity when:
On August 8, 2009, Complainant became aware that a female co-worker
(AS1) was indefinitely made a 204B Acting Supervisor, and he was not
approached by management like AS1 and given the same opportunity, nor
previously notified of this opportunity via posting or some other means.
The Agency dismissed the complaint on the grounds that Complainant
failed to state a claim. While the Agency conceded that Complainant
may have felt offended and even humiliated as a result of the alleged
discriminatory action, it held that the incident did not rise to the
level of an adverse action or actionable harassment.
CONTENTIONS ON APPEAL
Complainant argues that the Agency erred in dismissing his complaint.
The Agency argues that Complainant failed to prove discrimination.
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R � 1614.107(a) provides that an agency shall
dismiss a complaint or a portion of a complaint that fails to state
a claim under � 1614.103(a). An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. An employee
or applicant for employment is deemed aggrieved where the employee or
applicant for employment "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).
The only proper questions in determining whether a claim is within the
purview of the EEO process are (1) whether the complainant is an aggrieved
employee and (2) whether he has alleged employment discrimination covered
by the EEO statutes. An employee is "aggrieved" if he has suffered a
direct and personal deprivation at the hands of the employer. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
Here, Complainant contends that he was denied an opportunity for an
acting supervisor opportunity because of his race, color, sex, and prior
EEO activity. The Commission therefore finds that that Complainant's
claim is sufficient to render him an aggrieved employee.
The Commission notes further that it construes the complaint in a light
most favorable to the Complainant and takes the allegations as true.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). Here, the complaint states that Agency officials approached
AS1 regarding the higher level acting supervisor opportunity, while
Complainant did not receive a similar notification. EEOC case precedent
has long held that a promotion is a "term, condition or privilege of
employment." Id. Therefore, the Agency's alleged activity did indeed
cause Complainant to suffer a direct and personal deprivation.
Complainant has shown an injury or harm 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). Accordingly, the
Agency's final decision dismissing Complainant's complaint is REVERSED.
On appeal, the Agency argues there was no discrimination. Since there
has been no investigation, it is premature to make a determination on
whether there was discrimination. The complaint is hereby remanded to
the Agency for further processing in accordance with this decision and
the Order below.
ORDER (E0408)
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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 17, 2010
__________________
Date
2
0120101174
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101174