Sheldon C. Hubocan, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 30, 2000
01A03971 (E.E.O.C. Nov. 30, 2000)

01A03971

11-30-2000

Sheldon C. Hubocan, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Sheldon C. Hubocan v. United States Postal Service

01A03971

November 30, 2000

.

Sheldon C. Hubocan,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03971

Agency No. 4F-907-0146-98

DECISION

On May 13, 2000, complainant filed a timely appeal with this Commission

from an agency decision regarding 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 the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq.<1> The Commission accepts the appeal in accordance with 29

C.F.R. �1614.405.

On July 13, 1999, complainant filed a formal complaint, claiming he

was discriminated against on the bases of race, religion and age.

The agency framed the claims as follows:

1) A Supervisor, Customer Services and the Growth Management Coordinator

inspected complainant's work site, asked him questions about the

processing of mail at that location, and directed complainant to use

other methods to process mail;

2) The Supervisor asked complainant, �Why don't you retire, you have

enough time?;�

3) The Supervisor took pictures of complainant's work site to aid in

the relocation of the mail room;

4) The Supervisor and Growth Management Coordinator spoke to complainant

about complaints they had received from clients on his route.

Following an investigation, complainant was provided a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). On March 27, 2000, the AJ issued a decision dismissing

the complaint for failure to state a claim. The AJ determined that

complainant failed to show that he suffered a harm with respect to a term,

condition, or privilege of his employment. Moreover, according to the

AJ, the alleged incidents were not sufficiently severe or pervasive to

alter the conditions of complainant's employment and create a hostile

work environment.

On April 24, 2000, the agency issued a final order fully implementing

the AJ's decision.

On appeal, complainant presents no new contentions regarding the grounds

for dismissal of his complaint. Complainant instead argues that he

should receive a hearing with another AJ.

EEOC Regulation 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).

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 she has alleged employment discrimination

covered by the EEO statues. An employee is �aggrieved� if she has

suffered direct and personal deprivation at the hands of the employer.

See Hobson v. Department of the Navy, EEO Request No. 05891133 (March

2, 1990). Here, complainant argues he was discriminated against when his

work site was inspected, he was asked about the processing of mail, he was

asked about retiring, his work site was photographed and his supervisor

spoke to him about client complaints. We find that the alleged events

are sufficient to indicate that complainant may have been subjected to

discriminatory harassment that altered the conditions of his employment.

See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997). Since complainant has alleged that the agency's actions

were based on race, religion and age, he has raised a claim within the

purview of the EEOC regulations.

Accordingly, the agency's decision to dismiss complainant's complaint

was improper, and is hereby REVERSED. The complaint is REMANDED to the

agency for further processing in accordance with this decision and the

Order below.

ORDER

The complaint is remanded to the Hearing Unit of the Los Angeles District

Office for scheduling of a hearing in an expeditious manner. The agency

is directed to submit a copy of the complaint file to the EEOC Hearings

Unit within fifteen (15) calendar days of the date this decision becomes

final. The agency shall provide written notification to the Compliance

Officer, at the address set forth below, that the complaint file has been

transmitted to the Hearings Unit. Thereafter, the Administrative Judge

shall issue a decision on the complaint in accordance with 29 C.F.R. �

1614.109 and the agency shall issue a final action in accordance with

29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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)(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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

November 30, 2000

__________________

Date

1 On 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 29 C.F.R. Part 1614 in

deciding the present appeal. The regulations, as amended, may also be

found at the Commission's website at www.eeoc.gov.