Robert W. Sanchez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 17, 2009
0120090748 (E.E.O.C. Mar. 17, 2009)

0120090748

03-17-2009

Robert W. Sanchez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Robert W. Sanchez,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120090748

Agency No. 1E801008608

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated November 10, 2008, 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. In his complaint, complainant alleged that he

was subjected to discrimination on the bases of race (Hispanic/Native

American), disability (Cervical Radiculopathy), and reprisal for prior

protected EEO activity under a statute that was unspecified in the record

when:

1. During 2005, the Mail Handlers Union did not file complainant's

grievance in a timely manner regarding an overtime issue;

2. During August 2005, complainant was moved from Operation 030 to 175

and was no longer allowed to work overtime

3. On December 24, 2007, complainant was struck twice in the right

shoulder;

4. on December 28, 2007, management falsified complainant's CA-1 and

conspired to not have it submitted to the Office of Workmen's Compensation

(OWCP);

5. on March 20, 2008, complainant was issued a Letter of Warning for

Failure to Report an Accident in a Timely Manner;

6. On or about April 4, 2008, complainant's work hours were changed; and

7. On June 9, 2008, complainant received a Letter of Warning (LOW)

dated June 5, 2008 charging him with Failure to Work in a Safe Manner,

subsequently reduced to an informal discussion.

The agency dismissed the claims for varying reasons. The agency dismissed

claims 1 and 4 for failure to state a claim on the grounds that the claims

were a collateral attack against the OWCP process. The agency further

dismissed claims 1 through 6, inclusive, for untimely EEO counselor

contact. In addition, the agency found that claims 2 and 3 stated the

same claims as those raised in earlier complaints. As regards claim 7,

the agency found that complainant was not aggrieved and that the action

complained of was unlikely to deter protected activity.

On appeal, complainant alleges that the actions complained of

all constitute ongoing harassment and should be included with his

previously-filed complaints.

Following a review of the record we find that the agency correctly

dismissed claims 1 through 6, inclusive. The record shows that the

first incident occurred in 2005 and the most recent on April 4, 2008,

however complainant did not contact an EEO counselor until July 9,

2008, which is beyond the 45-day limitation period. As for claim 7,

while complainant did not suffer a present harm or loss with respect to

a term, condition, or privilege of employment, see Diaz v. Department

of the Air Force, EEOC Request No. 05931049 (April 21, 1994), and hence

is not aggrieved, the Commission finds being subjected to an informal

discussion constitutes an action that is reasonably likely to deter

protected activity. We therefore find that complainant states a claim

of reprisal. Accordingly, the FAD is AFFIRMED in part and REVERSED in

part and claim 7 is REMANDED to the agency for further processing.

ORDER (E0408)

The agency is ordered to process the remanded claim in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claim 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 (T0408)

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 (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

March 17, 2009

__________________

Date

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0120090748

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120090748