01a02860
08-01-2000
Silverio Rubio, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region Agency.
Silverio Rubio v. United States Postal Service
01A02860
August 1, 2000
Silverio Rubio, )
Complainant, )
)
v. ) Appeal No. 01A02860
William J. Henderson, ) Agency No. 4C150001500
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated February 8, 2000 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.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. , and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of religion (Roman Catholic), national origin (Hispanic),
sex (male), age (d.o.b. 1/30/44), perceived mental disability, and
retaliation when:
on December 11, 1998, he was not selected as Manager, Labor Relations
Board;
on January 11, 1998, he was not assigned to a closer work location;
on January 13, 1999, he was reassigned to Labor Relations;
on January 15, 1999, he was told he would receive Performance Improvement
Training;
on January 15, 1999, he was reassigned from the Bulk Mail Center to the
General Mail;
on January 25, 1999, he was told about Performance Improvement Training;
on January 26, 1999, he was told not to do any Labor Relations Work;
on January 28, 1999, February 2, 1999, and February 4, 1999, it was
requested that his office be cleared of files, books, plants, etc.;
on February 4, 1999, he was questioned about reading a personal book on
the clock;
on April 13, 1999, he was denied an interview for Woods Run;
on April 22, 1999, he was scheduled for a Psychiatric Fitness for Duty
Examination;
in May of 1999, he was no longer assigned to the Career Awareness Center;
on May 20, 1999, he was denied an interview for Penn Hills;
on May 20, 1999, he was denied a mileage claim;
on June 30, 1999, he was denied an interview for Brentwood;
on August 5, 1999, he was denied an interview for Natrona Heights;
on August 19, 1999, he was denied an interview for Oakland;
on September 2, 1999, cc: mail was not answered;
on September 15, 1999, he was denied an interview for Corapolis;
on September 15, 1999, he was no longer used in Hispanic Heritage Month
Activities;
on an unspecified date, he was no longer used on Promotion Review Boards;
on an unspecified date, he was denied training;
on an unspecified date, he was denied Officer In Charge (OIC) assignments;
and
on an unspecified date, Postmasters were told to only talk to a
coworker(CW1) in Labor Relations.
The agency dismissed issues (1), (2), (3), (4), (5), (6), (7), (8), (9),
( 11), and (12) for untimely EEO counselor contact. EEOC Regulation
29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of the Equal Employment Opportunity
Counselor within forty-five (45) days of the date of the matter
alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. The record reflects that the most recent incident of
discrimination concerning the above issues occurred in May of 1999.
The complainant did not contact an EEO counselor until October 14, 1999,
well beyond the forty-five (45) day limitation.
The agency dismissed claims (10), (13), (14), (15), (16), (17), (18),
(19) and (23) for stating the same claim pending before the agency.
The record reflects that claim (10) has been previously raised by
the complainant in agency number 4C150006599. Issues (13) and (15)
have been raised in agency number 4C150008699. Issue (14) has been
raised by the complainant in Agency Case No. 4C150008199. The record
further reflects that issues (16), (17) , (18) , (19) and (23) have
been raised in Agency Case No. 4C150010299. The regulation set forth at
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited
as 29 C.F.R. � 1614.107(a)(1)) provides that the agency shall dismiss a
complaint that states the same claim that is pending before or has been
decided by the agency or Commission.
The agency dismissed claim (20) for failure to state a claim.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 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 he 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 complainant in
the instant case states that he was not used in Hispanic Heritage month,
as he had been in previous years.
EEOC Regulation 29 C.F.R. � 1614.101(b) specifies that federal employees
are protected from retaliation by their employing agency when they have
opposed an unlawful discriminatory practice or participated in any stage
of a proceeding under any of the federal anti-employment discrimination
statutes enforced by the Commission.
An essential element of the prima facie case of reprisal is that the
complainant engaged in protected activity, i.e. participation in the
EEO process or opposing unlawful discrimination. Manoharan v. Columbia
University College of Physicians and Surgeons, 842 F.2d 590, 593 (2d
Cir. 1988); Wren v. Gould, 808 F.2d 493, 500 (6th Cir. 1987);Frye
v. Department of Labor, EEOC Request No. 05940764 (December 15,
1994). Participation occurs when an employee has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing. Participation also occurs when an employee files
a labor grievance, if the employee raised issues of unlawful employment
discrimination in the grievance.<2> A variety of activities has been found
to constitute opposition. Whipple v. Department of Veterans Affairs, EEOC
Request No. 05910784 (February 21, 1992) (citations omitted). Because
the enforcement of Title VII depends on the willingness of employees to
oppose unlawful employment practices or policies,
courts have interpreted the anti-reprisal section of Title VII as
intending to provide "exceptionally broad protection" to those who oppose
such practices. Id. (citing Pettway v. American Cast Iron Pipe Co.,
411 F.2d 998, 1006, n.18 (5thCir. 1969).
In the instant case, the Commission is not persuaded by the agency's
finding that the complainant has failed to state a claim. The Commission
makes no finding as to whether or not the complaint is sufficient to
constitute protected activity, finding that the record is undeveloped
at this point, and that this issue should be developed on remand.
The agency dismissed claims (21), (22) and (24) for failure by the
complainant to respond to a written request for relevant information or
otherwise proceed with the complaint. The regulation set forth at 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as
29 C.F.R. � 1614.107(a)(7)) provides for the dismissal of a complaint
where the agency has provided the complainant with a written request to
provide relevant information or otherwise proceed with the complaint,
and the complainant has failed to respond to the request within 15
days of its receipt or the complainant's response does not address the
agency's request, provided that the request included a notice of the
proposed dismissal. The regulation further provides that, instead of
dismissing for failure to cooperate, the complaint may be adjudicated
if sufficient information for that purpose is available.
The record indicates that on December 2, 1999, complainant received
a memorandum from the agency requesting that he furnish an affidavit
and indicating that failure to do so within 15 days would result in
dismissal of his complaint. According to the agency, complainant failed
to furnish his affidavit within the requisite time frame, and therefore,
his complaint should be dismissed for States Postal Service, EEOC Request
No. 05940451 (December 22, 1994). The Commission finds that the
complainant sent the information requested on December 14, 1999, which
is within the 15 day requirement.
Since we find that the agency improperly dismissed claims (20, (21),
(22) ,and (24), we remand these improperly dismissed claims, along
with the other claims dismissed by the agency's February 8, 2000 FAD.
In so doing we note that, pursuant to the provisions of 29 C.F.R. �
1614.107 (b), �[w]here the agency believes that some but not all of the
claims in a compliant should be dismissed for the reasons contained in
[29 C.F.R. � 1614.107(a)], the agency shall notify the complainant in
writing of its determination, the rationale for that determination and
that those claims will not be investigated, and shall place a copy of
the notice in the investigative file.� Complainant is advised that the
agency's determination is reviewable by an EEOC administrative judge if
a hearing is requested, but is not appealable to the Commission until
final action is taken n the remainder of the complaint. Id. See also
EEOC Management Directive (MD) 110, as revised, November 9, 1999.
Accordingly, we VACATE the agency's decision and REMAND this matter in
accordance with the following order and the applicable EEOC regulations.
ORDER (E0400)
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 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 (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 (M0300)
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:
The appellate decision involved a clearly erroneous interpretation of
material fact or law; or
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 THIS 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); 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 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).
COMPLAINANTS' 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 His 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 this 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:
August 1, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations 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 Commission notes as to complainant's claim of discrimination
based on reprisal, under present Commission policy, claimed retaliatory
actions which can be challenged are not restricted to those which affect
a term or condition of employment; a complainant is protected from any
discrimination which is reasonably likely to deter protected activity.
See EEOC Compliance Manual Section 8, �Retaliation,� No. 915.003 (May 20,
1998), p. 8-15.