COMPLAINANT,
v.
PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, (SOUTHEAST AREA), AGENCY.

Appeal No. 0120112012
Agency No. 4H-330-0039-11

July 19, 2011

DECISION

Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 14, 2011, dismissing a formal complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended (ADEA), 29 U.S.C. §621 et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Letter Carrier at the Agency's Boca Rio Branch facility in Boca Raton, Florida. On January 26, 2011, Complainant filed the instant formal complaint, on the bases of disability (unspecified) and age (58).


On February 14, 2011, the Agency issued the instant final decision. Therein, the Agency determined that Complainant's formal complaint was comprised solely of the following two claims:
1. on October 20, 2010, Complainant was assigned to work in the Standby Room; and;
2. on October 24, 2010, the Agency informed Complainant that the National Reassessment Team wanted to speak with him.

The Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim.

The record in this case contains a copy on the EEO Dispute Resolution Specialist's (DRS) Inquiry Report. Therein, in that portion of the report identifying the requested resolution, the DRS indicated that Complainant requested as a remedy "that he be compensated monetary loss due to his being forced to retire and not being able to work until the age of 62 or longer, (emphasis added)"

CONTENTIONS ON APPEAL

Complainant argues that, as a result of his meeting with the National Reassessment Team, he was forced to retire from his employment with the Agency.

In response, the Agency argues the complaint fails to state a claim. Specifically, the Agency asserts that after Complainant met with the National Reassessment Team, "he stopped coming to work and eventually voluntarily retired on November 1, 2010."The Agency further asserts that it did nothing to cause an adverse impact upon Complainant's employment.

ANALYSIS AND FINDINGS

The Commission determines that a fair reading of the pre-complaint documents considered together with the formal complaint reflects that Complainant has alleged that the two incidents expressly identified by the Agency in its final decision, culminated in his forced retirement from Agency employment. We note, for example, that the DRS stated Complainant is requesting, as resolution to the formal complaint, "that he be compensated monetary loss due to his being forced to retire . . . ." By alleging that the incidents identified in Claims 1 and 2, led to his constructive discharge, Complainant has sufficiently alleged a personal loss or harm to a term, condition, or privilege of his employment for which relief is available. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Moreover, the Agency's determination that Complainant was not forced to retire, but instead had voluntarily retired, goes to the merits of Complainant's complaint, and is irrelevant to the procedural issue of whether he has stated a justiciable claim. See Ferrazzoli v. USPS, EEOC Request No. 05910642 (August 15, 1991).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we REVERSE the Agency's final decision and REMAND the formal complaint (identified herein as a claim of constructive discharge) to the Agency for further processing in accordance with the ORDER below.

ORDER (E0610)

The Agency is ordered to process the remanded claims 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 (K0610)

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 77960, Washington, DC 20013. 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 mi 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 (M0610)

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), at 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 77960, Washington, DC 20013. 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 sub-mitted 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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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