Terence Shalow, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 15, 1999
01991623 (E.E.O.C. Sep. 15, 1999)

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).