01A22951
08-06-2002
Derrick A. Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Derrick A. Lee v. United States Postal Service
01A22951
August 6, 2002
.
Derrick A. Lee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22951
Agency No. 1C-272-0005-02
DECISION
Complainant initiated an appeal from the agency's decision dismissing his
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. In a complaint dated February 28, 2002, complainant alleged
that he was subjected to discrimination on the bases of race, color,
disability, and reprisal for prior EEO activity when:
On November 7, 2001, a supervisor told complainant that he would be
moved to another area because he was talking too much.
On November 7, 2001, complainant was told that he didn't have a job
and could be moved anywhere.
On appeal, complainant points out that he submitted with his complaint,
a 28-page narrative statement, detailing, among other things, the history
of his interactions with various supervisors, his medical restrictions
and multiple requests for leave. Complainant contends that more than
one incident of discrimination has occurred.
The Commission finds that claims 1 and 2 fail to state claims under the
EEOC regulations because complainant failed to show that he suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). The isolated remarks of
complainant's supervisor intended to correct inefficient behavior do not
rise to the level necessary to state an actionable claim. Accordingly,
the agency's final decision dismissing claims 1 and 2 was proper.
The Commission notes that the lengthy narrative statement submitted as a
part of complainant's complaint appears to contain detailed information
regarding additional allegations of discrimination concerning, among other
matters, occasions where complainant was denied leave, schedule changes
or reasonable accommodation for his disability. These additional claims
were neither defined nor addressed in the agency's final decision, nor
do they appear defined in the EEO Counselor's report. We are unable to
discern from the record whether these undefined claims are described for
the first time in the complaint, submitted only as background information
or if complainant presented these matters for EEO counseling. We deem
the agency's failure to address the additional undefined incidents as a
dismissal, which complainant seeks to appeal herein. For the reason that
the undefined claims appear, on their face, to state justiciable claims,
we find the agency's dismissal improper.
Accordingly, we AFFIRM the agency's dismissal of claims 1 and 2 as
defined herein. We REVERSE the agency's dismissal of the undefined
claims of complainant's complaint and REMAND these claims to the agency
for further processing as directed herein.
ORDER
The agency is Ordered to take the following actions:
(1) Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall provide complainant with the opportunity to
clarify the claims in his complaint other than claims 1 and 2, described
herein, i.e., the November 7, 2001 incidents. The agency shall notify
the complainant of the opportunity to clarify the claims. Complainant,
in turn, shall be provided with thirty (30) calendar days within which
to clarify the claims.
(2) Based on the foregoing, the agency, within sixty (60) calendar days
of the date that this decision becomes final, shall issue a new final
agency decision and/or acknowledge to complainant that the remanded
claims are being processed, clearly setting forth the claims accepted.
A copy of the request for clarification and a copy of the agency's final
decision and/or letter of acknowledgment to complainant must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(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 (M0701)
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 (T0900)
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 (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
August 6, 2002
__________________
Date