0120062492
06-05-2007
Frederick C. Talbot, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Frederick C. Talbot,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 01200624921
Agency No. 4F-956-0026-06
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated February 22, 2006, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds
that complainant's complaint was improperly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim. In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of disability, age (D.O.B. 05/05/49), and in reprisal for prior protected
EEO activity (arising under the ADEA and the Rehabilitation Act) when:
1. CE-1: During Pay Period 1, 2004, complainant received an unilateral
change in pay;
2. CE-2A: Management violated complainant's medical restrictions on a
continuous basis while he worked at the Central Forwarding Service (CFS)
Unit;
3. CE-2B: On an unspecified date, complainant applied for TTS (Supervisor
Training) with a supervisor (S1) and never received a response;
4. CE-3A: On or about July 20, 2004, another supervisor (S2) instructed
complainant not to use the carrier entrance while at Royal Oaks;
5. CE-3B: On July 17, 2005, complainant was moved from CFS Clerk PS-4
to Mail Processing Clerk PS-4;
6. CE-4: On an unspecified date, complainant was involuntarily moved to
the Clerk craft, and
7. CE-5: On November 16, 2004, complainant was not allowed to bid on
vacation time with other clerks.
In its final decision, the agency dismissed the complaint on grounds
that complainant failed to state an actionable claim. Specifically, the
agency states that he failed to "allege an unresolved personal injury as
a result of the alleged illegal discriminatory act." The agency further
noted that any verbal remarks unaccompanied by concrete action do not
render complainant aggrieved, even if made in the presence of others.
In order to state an actionable claim, our case law requires that
a complainant be "aggrieved," meaning, he or she must allege to have
"suffered direct and personal deprivation at the hands of the employer."
Gilyard v. Dep't of Energy, Appeal No. 01A01550 (June 9, 2003) (citing
Hobson v. Dep't of the Navy, EEOC Request No. 05891133 (Mar. 2, 1990));
see also Diaz v. Dep't of the Air Force, EEOC Request No. 05931049
(Apr. 21, 1994) (defining 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.). Section 1614.107(a) of the EEOC
regulations further requires that the allegations in a complaint be taken
as true and all reasonable inferences be drawn in favor of complainant.
A complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that no set of facts can be established that would
entitle complainant to the relief sought in the complaint. See Conley
v. Gibson, 355 U.S. 40, 45-46 (1957).
Applying this rule of law, we find the agency's decision to be partly
in error. On the one hand, we agree with the agency that claim 4 (CE-3A)
fails to state a claim. We are not persuaded that complainant has shown
he was aggrieved by the agency's action. He has not demonstrated that
being instructed not to use the carrier entrance while at Royal Oaks
harmed a term, condition, or privilege of his employment. On the other
hand, we find that complainant has stated valid claims with regard to
claims 1 (CE-1), 2 (CE-2A), and 3 (CE-2B). Contrary to the agency's
conclusion, we find that these allegations affected a term, condition,
or privilege of complainant's employment for which there is a remedy.
See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21,
1994).2
However, the remaining claims fail to survive. Where a complaint states
the same claim that is pending before or had been decided by the agency
or Commission, the claim will be dismissed pursuant to 29 C.F.R. �
1614.107(a)(1). We interpret this regulation to require that the
complaint must set forth the "identical matters" raised in a previous
complaint filed by the same complainant, in order for the subsequent
complaint to be rejected. See Terhune v. United States Postal Serv.,
EEOC Request No. 05950907 (July 18, 1997); Russell v. Dep't of the Army,
EEOC Request No. 05910613 (Aug. 1, 1991) (interpreting 29 C.F.R. �
1613.215(a)(1), the predecessor of 29 C.F.R. � 1614.107(a)(1)).
Here, we find that complainant raised claims 5 (CE-3B), 6 (CE-4) and 7
(CE-5) in other complaints which were reviewed by EEOC Administrative
Judges (AJs), and are now matters that are currently pending on appeal
with our office. Specifically, claim 5 (CE-3B) was raised in Agency
Case No. 1F-957-0033-05. Complainant admits this much in his formal
complaint. Claim 6 (CE-4) is also encompassed in the same Agency Case
number.3 This prior complaint came before an AJ who issued a decision
without a hearing. See Talbot v. United States Postal Serv., EEOC Case
No. 370-2006-00032X (Mar. 14, 2006). Complainant appealed the ruling
in EEOC Appeal No. 0120062827. We find claims 5 and 6 identical to the
claims raised Appeal No. 0120062827. As such, we dismiss the claims.
Similarly, with regard to claim 7 (CE-5), we find that complainant raised
the issue in Agency Case No. 4F-956-0015-05.4 Another AJ addressed
this matter in EEOC Case No. 370-05-00464X (Aug. 31, 2005), and again
complainant appealed the ruling in EEOC Appeal No. 0120060814. We shall
address claims 5, 6 and 7 in our decision(s) on the pending appeals.
Accordingly, the agency's final decision dismissing complainant's
complaint is reversed in part and affirmed in part. The complaint is
hereby remanded to the agency for further processing in accordance with
this decision and the Order below.
ORDER
The agency is ordered to process claims 1-3 in accordance with 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 (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
June 5, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 We note that in his complaint, complainant stated that all of his
instant claims were related to the claims he raised in Agency Case
No. 4F-956-0089-02, which is currently on appeal with our office as
EEOC Appeal No. 0120055206 (again, this docket number change is due
to our new data system). We have reviewed the outstanding appeal and
find that the matters are not related. It is true that complainant
attempted to amend his prior complaint before an AJ to include these
claims, but the AJ rejected the amendment and instructed complainant to
file a new formal complaint, stating that the "motions to amend are not
demonstrably connected to the initial allegations in the case before me."
Talbot v. United States Postal Serv., EEOC Case No. 370-2003-02546X at 3
(June 17, 2005).
3 In Agency Case No. 1F-957-0033-05, complainant alleged that he had
been discriminated against on the basis of age, disability and reprisal
when (1) on April 8, 2005, he was moved from his rehabilitation position
in maintenance and involuntarily assigned to mail processing; 2) on May
14, 2005, he was involuntarily1 reassigned to a Mail Processing Clerk
position at the Royal Oaks Post Office; and 3) on June 6, 2005, he was
given a second involuntary reassignment.
4 The issue identified in Agency Case No. 4F-956-0015-05 is whether the
agency discriminated against complainant on the bases of age, disability
and reprisal when in November 2004, he was not given the vacation time
he desired.
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0120062492
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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