01991623
09-15-1999
Terence Shalow, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Terence Shalow v. United States Postal Service
01991623
September 15, 1999
Terence Shalow, )
Appellant, )
) Appeal No. 01991623
v. )
) Agency No. 1-G-711-0024-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. �621 et seq. The appeal is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed, for failure
to state a claim, one of appellant's bases for discrimination and whether
appellant's settlement breach allegation should have been addressed.
BACKGROUND
Appellant filed a formal complaint on January 15, 1998, alleging
discrimination on the bases of sex (male), age (39), and reprisal (prior
EEO activity) when, on August 15, 1997, he was removed from his work area
and placed in an unsafe working environment and when, shortly after it
was signed, the agency breached the July 1, 1993 settlement agreement it
reached with him. On appeal, appellant indicates that he was sexually
harassed by his supervisor.
In its final decision, the agency dismissed age as a basis upon concluding
that the Age Discrimination in Employment Act (hereinafter, "ADEA") did
not cover persons younger than forty years of age. The settlement breach
allegation was dismissed when the agency found that such matters should
not be handled via the complaints process, but rather, in accordance
with 29 C.F.R. �1614.504. The sexual harassment claim was not discussed
because this issue was not included in the formal complaint.<1> The
August 15, 1997 incident was accepted for investigation. This appeal
followed.
ANALYSIS AND FINDINGS
Discrimination on the Basis of Age
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
After a careful examination of the file, the evidence reveals that
appellant, born on December 27, 1958, was thirty nine (39) at the time
he filed his complaint alleging discrimination based on age. However,
as the ADEA clearly provides, only those individuals who are at least
forty (40) years of age are protected from age discrimination<2>.
As such, the Commission finds that, regarding his age, appellant did not
suffer a harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy, and therefore, the agency's
decision to dismiss age as a basis was appropriate.<3>
Breach of Settlement Agreement
EEOC Regulation 29 C.F.R. �1614.504(a) provides, in relevant part, that
if the complainant believes that the agency has failed to comply with the
terms of a settlement agreement, he/she shall notify the EEO Director,
in writing, of the alleged noncompliance within 30 days of when the
complainant knew or should have known of the alleged noncompliance.
The evidence of record indicates that the agency contends that appellant
did not follow the procedures as outlined in 29 C.F.R. �1614.504(a),
thus its final decision did not address the alleged settlement breach.
Appellant disagrees. He maintains that, in a letter dated October
20, 1993, the EEO Director was notified of the alleged noncompliance.
There is not enough information in the materials provided by either
party to allow the Commission to determine whether or not appellant
followed the procedural requirements of 29 C.F.R. �1614.504(a).
However, notwithstanding the lack of information, we find that this
allegation should have been dismissed, but on alternative grounds.
The Commission's regulations allow for the dismissal of a complaint that
is pending in a United States District Court in which the complainant is
a party. 29 C.F.R. �1614.107(c). The purpose of this provision of the
regulations is to avoid duplicative investigation of identical complaints
by two different fact-finding bodies. After an outside investigation,
the evidence reveals that this allegation is the subject of a complaint,
in which appellant is a party, that is pending before a United States
District Court. As such, we find that the settlement breach allegation
could have been dismissed pursuant to 29 C.F.R. �1614.107(c).
CONCLUSION
Accordingly, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, we hereby AFFIRM the final
decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Sept. 15, 1999
_____________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 Although this issue was not included in appellant's formal complaint,
it was explained fully in the statement on appeal. Also, it was mentioned
briefly to the EEO counselor during the counseling phase but appellant
expressly chose not to pursue it, i.e., include it in the process,
at the time. Since appellant is alleging that his rejection of his
supervisor's sexual demands is the "but for" cause of the August 15,
1997 incident, this issue should be a part of the agency's investigation.
2 See 29 U.S.C. �631(a).
3 We note that this holding, however, does not change the identity
of appellant's complaint. See Sanchez v. Standard Brands, Inc., 431
F.2d 455 (5th Cir. 1970); Dragos v. United States Postal Service, EEOC
Request No. 05490563 (January 19, 1995) (holding that a complainant may
amend his or her complaint, at any time, to add or delete bases without
changing the identity of the claim).