01a34552
12-03-2003
Robert C. Scheuerman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert C. Scheuerman v. United States Postal Service
01A34552
December 3, 2003
.
Robert C. Scheuerman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34552
Agency No. 4A-070-0217-02
DECISION
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.
On July 9, 2002, complainant initiated contact with an EEO Counselor.
In that portion of the EEO Dispute Resolution Specialist's Inquiry
Report requesting that complainants identify the bases for alleged
discrimination, the EEO Specialist checked the box labeled �physical
disability� and added the entry �on-the-job injury.� In an Information
for Pre-Complaint Counseling form, complainant stated �I don't know if
it's because of my physical limitation or just because it's �his way or
no way� for his actions.
In a formal complaint dated October 25, 2002, complainant alleged that
he was subjected to discrimination when on June 17, 2002, the station
manager ordered him off the work room floor and sent him home, for being
out of uniform.
In a final decision dated July 17, 2003, the agency dismissed the
complaint for failure to state a claim. Specifically, the agency
determined that in his formal complaint, complainant did not link his
complaint to any protected basis.
On appeal, complainant argues that when he underwent EEO counseling,
he alleged that he was the victim of unlawful employment discrimination
on the basis of physical disability due to a job related injury.
The Commission has previously held that "it is well established that
EEO charges are to be liberally construed to effectuate the purposes of
discrimination statutes and the crucial role of the private litigant
in the statutory scheme. Sanchez v. Standard Brands, Inc., 431 F.2d
455 (5th Cir.1970). President v. Vance, 627 F.2d 353 (D.C.Cir.1980)
(applying the Sanchez principle to federal employees". Raipal v. USPS,
EEOC Request No.05920037 (May 19, 1992). The crucial element in a
charge of discrimination is the set of facts alleged therein, not the
complainant's conclusions concerning the agency's motivation. Mahood
v. Department of Defense, EEOC Appleal No. 01941890 (May 2, 1994).
A fair reading of the record, and specifically the pre-complaint
documents, supported by complainant's assertion on appeal, reflects that
complainant's complaint alleged, in essence, that he was the victim of
unlawful employment discrimination on the basis of disability.
Accordingly, the agency's final decision to dismiss complainant's
complaint was improper since complainant did allege a covered basis
of discrimination. The agency dismissal of the complaint is REVERSED.
The complaint is REMANDED to the agency for further processing as
ordered below.
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 (R0900)
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 (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
December 3, 2003
__________________
Date