Ralph Falu v. United States Postal Service 01A53408 May 12, 2006 . Ralph Falu, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Appeal No. 01A53408 Agency No. 66-000-0021-05 DECISION Complainant timely filed an appeal from the agency's final decision dated March 11, 2005, dismissing his complaint of unlawful employment discrimination. In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (African-American), disability (disabled veteran), and age (D.O.B. 8/31/53) when: On October 28, 2004, Postal Inspectors conducted a search of complainant, his belongings, and the Postal Service vehicle assigned to complainant. In its final decision, the agency dismissed complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for the untimely filing of the formal complaint. Alternatively, the agency dismissed complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Upon review, the Commission finds that complainant's complaint was improperly dismissed due to the untimely filing of the formal complaint. The record discloses that complainant received the notice of right to file a formal complaint on December 16, 2004. The notice indicated that complainant had to file a formal complaint within fifteen (15) calendar days of its receipt. Under 29 C.F.R. § 1614.604(d), the time period for the filing of a formal complaint is counted from the first day after the receipt of the notice of right to file a formal complaint and includes the last day of the 15-day period, unless it falls on a Saturday, Sunday, or Federal Holiday, in which case the period is extended to include the next business day. In the present case, fifteen days following complainant's receipt of the notice of right to file was December 31, 2004, which was a federal holiday. Accordingly, the time period for filing the formal complaint was extended until the next business day which was Monday, January 3, 2005. As complainant's formal complaint was postmarked on January 3, 2005, we find his complaint was timely filed. EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that an agency may dismiss a complaint which fails to state a claim pursuant to 29 C.F.R. § 1614.103. 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. The Commission's federal sector case precedent has long defined an “aggrieved employee' as one who suffers a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of Air Force, EEOC Request No. 05891133 (April 21, 1994). The only proper questions in determining whether a claim is within the purview of the EEO process are (1) whether the complainant is an aggrieved employee and (2) whether he has alleged employment discrimination covered by the EEO statues. An employee is “aggrieved” if he has suffered direct and personal deprivation at the hands of the employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990). In the present case, complainant contends that he was discriminated against based on his race, age, and disability when on October 28, 2004, his person, his belongings and his assigned Postal vehicle were searched by Postal Inspectors. Complainant explains that he was forced to “disrobe in full view of his customers” and he attaches statements from four Postal customers who described that on October 28, 2004, they viewed complainant “removing articles of clothing” while being watched by two men and they witnessed two men searching complainant and his mail. We find that complainant's allegation that he was subject to a strip search in front of Postal customers involved a term, condition or privilege of complainant's employment and, therefore, his complaint states a claim. Accordingly, the agency's decision to dismiss complainant's complaint is REVERSED and the complaint is REMANDED for further processing in accordance with the Order listed below. ORDER (E0900) 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 (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 (R0900) 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 (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 May 12, 2006 __________________ Date