Appellant,
v.
Anthony M. Frank, Postmaster General, United States Postal Service, (Northeastern Region), Agency.

Request No. 05910642
Appeal No. 01910936
Agency No. 1-M-1004-91

August 15, 1991

DENIAL OF REQUEST TO REOPEN

INTRODUCTION

On June 6, 1991, Anthony M. Frank, Postmaster General, United States Postal Service, (hereinafter referred to as the agency) timely initiated a request to the Equal Employment Opportunity Commission (hereinafter referred to as the Commission) to reopen and reconsider the decision in Appellant v. Anthony M. Frank, Postmaster General, United States Postal Service, EEOC Appeal No. 01910936 (May 6, 1991), received by the agency on May 9, 1991. EEOC Regulations provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish one or more of the criteria prescribed by 29 C.F.R. 1613.235(b). The agency bases its request on 29 C.F.R. 1613.235(b)(2) (the Commission's previous decision involved an erroneous interpretation of law or regulation or a misapplication of established policy). For the reasons set forth herein, the agency's request is denied.

ISSUE PRESENTED

Whether our previous decision properly vacated the agency's final decision which rejected appellant's complaint on the grounds that it failed to state a claim within the purview of the regulations.

BACKGROUND

Appellant is a union treasurer and LSM Operator, Level 6, at the agency's postal annex in Flushing, NY. On October 11, 1990, appellant filed a complaint alleging discriminatory harassment on the bases of race (Caucasian), color (white), and sex (male), when a black female supervisor requested that appellant show his identification badge upon entering the annex. The agency issued a final decision rejecting appellant's complaint on the grounds that he was not aggrieved and had failed to state a claim within the purview of the regulations. The agency concluded that appellant had not suffered real loss, harm or deprivation. In addition, the agency stated that appellant had signed a memorandum which provided that appellant was required to show his identification badge before entering agency premises. The agency also maintained in its decision that the remedial relief requested by appellant was inappropriate under the EEOC Regulations.

Appellant appealed to the Commission from the final agency decision. Our previous decision found that the agency had improperly rejected appellant's complaint. We concluded that appellant had stated a claim of discrimination within the purview of the EEOC Regulations, and that the agency had improperly considered the merits of appellant's claim in its rejection determination. The agency filed a request to reopen and reconsider our previous decision.

The record reveals that on the night at issue, the supervisor asked appellant to show his identification badge upon entering the agency annex. Appellant stated that he presented his union identification to the supervisor, but that she would not accept it. According to appellant, the supervisor stated that she did not know appellant and needed to see his agency badge. Appellant then presented his postal identification and was permitted to enter the building. Appellant alleged that the supervisor had known him for approximately eight years, and that her actions amounted to discriminatory harassment. The supervisor denies telling appellant that she did not know him, but stated that she told appellant that she did not recognize his badge. As remedial relief, appellant requested, among other things, a written apology from the supervisor, disciplinary action against the supervisor, and a cease and desist order against further discrimination.

In its request to reopen, the agency argued that appellant was not an 'aggrieved' employee because his allegation was not substantial. According to the agency, appellant did not suffer any direct, personal deprivation because he was merely asked to show his badge like all other employees. The agency asserted, additionally, that the relief requested by appellant, i.e., an apology and discipline of the alleged discriminating official, is not available under the regulations, and that further processing of appellant's complaint would frustrate the goals of judicial economy. Appellant did not respond to the agency's request to reopen.

ANALYSIS AND FINDINGS

As noted above, the Commission may, in its discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that any one or more of the criteria of 29 C.F.R. 1613.235(b) are met. In order for a decision to be reopened, the request must contain specific information which tends to establish that: (1) there is new and material evidence available that was not readily available when the Commission issued its previous decision; (2) the previous Commission decision involved an erroneous interpretation of law or regulation or misapplication of established policy; or (3) the decision is of such an exceptional nature as to have effects beyond the actual case at hand.

After a review of the record, the Commission's previous decision, and the agency's request to reopen, the Commission finds that the agency's request fails to satisfy the criteria of 29 C.F.R. 1613.235(b).

EEOC Regulation 29 C.F.R. 1613.212(a) states that an agency shall provide in its regulations for the acceptance of a complaint from any aggrieved employee who believes that he or she has been discriminated against by the agency on the basis of race, color, religion, sex, national origin, age or handicapping condition. While the regulations and Title VII fail to define the term 'aggrieved employee', it is generally interpreted by the courts and the Commission to mean an employee who alleges that he has suffered a personal loss or harm with respect to a term, condition, or privilege of employment. See Trafficante v. Metropolitan Life Insurance Co., 409 U.S. (1972); McCants v. United States Postal Service, EEOC Request No. 05900643 (August 30, 1990).

In determining whether an employee is aggrieved, the merits of the complaint allegations are irrelevant to whether the complainant has articulated a justiciable Title VII Complaint. See McCants, supra. To file a justiciable complaint, it is only necessary that a complainant allege a belief that he has been subjected to adverse action because of his protected class. See Zalucky v. United States Postal Service, EEOC Request No. 05870508 (April 14, 1988). In addition, it is inappropriate for an agency to reject a complaint because the remedies requested are not available under the regulations. The scope of the available remedial action is not limited by the relief to requested in the complaint. Id.

Here, appellant has alleged that he believes he was subjected to harassment by an agency supervisor because of his race, color and sex. In rejecting appellant's complaint, the agency asserted that all employees are required to present agency identification upon entering agency facilities and that appellant signed a memorandum agreeing to present such identification. Our previous decision found that the agency had improperly and prematurely considered the merits of appellant's complaint in its decision to reject the complaint for failure to state a claim. We agree with our previous decision. In the instant case, appellant alleged that action was taken against him by the agency which could be construed as discriminatory harassment. He has, therefore, alleged a violation which brings him within the purview of the EEOC regulations. In addition, even though appellant has requested relief which is unavailable under Title VII, i.e., an apology and disciplinary action against the supervisor, remedial relief does exist for the alleged action in the form of a cease and desist order or similar remedy.

Therefore, based on a thorough review of the evidence, we find that the agency improperly decided the merits of appellant's case prior to conducting an investigation. Our previous decision properly vacated the agency's rejection of appellant's complaint. EEOC Regulations provide for reopening only when the appellant or the agency submits written argument or evidence which tends to establish that the regulatory criteria of 29 C.F.R. 1613.235(b) have been met. The agency's request does not satisfy the criteria of the EEOC Regulations. Accordingly, we deny the agency's request to reopen and reconsider the Commission's previous decision.

CONCLUSION

After a review of the agency's request to reopen, the Commission's previous decision, and the entire record, the Commission finds that the agency's request fails to meet the criteria of 29 C.F.R. 1613.235(b). It is therefore the decision of the Commission to deny the agency's request to reopen. The decision of the Commission in EEOC Appeal No. 01910936 (May 6, 1991), remains the Commission's final decision in this matter. There is no further right of administrative appeal from a decision of the Commission on a request to reopen.

ORDER

The agency is ORDERED to process the remanded allegations in accordance with EEOC Regulations 29 C.F.R. 1613.211 et seq. The agency shall notify the appellant of the acceptance of the remanded allegations within thirty (30) calendar days of the date that this decision becomes final. The agency shall issue a proposed disposition within sixty (60) calendar days of the date this decision becomes final. If the appellant requests a final agency decision without a hearing (or does not respond to the notice of proposed disposition), the agency shall issue a final decision within forty-five (45) calendar days of issuing the proposed disposition. A copy of the letter of acceptance and proposed disposition (or final agency decision if a hearing is not held) must be submitted to the Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION(K0391)

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 appellant.

RIGHT TO FILE A CIVIL ACTION (R0391)

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: (1) within thirty (30) calendar days of receipt of notice of final action taken by the agency on your complaint subsequent to this remand; or (2) 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. See Section 717(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.; 29 C.F.R. 1613.281. You may be required to exhaust the administrative process prior to filing a civil action, depending upon the jurisdiction in which you file. Furthermore, the limitations period for filing a civil action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq. (ADEA) may differ from the period set out for the filing of civil actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 791. You may be foreclosed from filing a civil action on any claim brought under the ADEA if you fail to file within the limitations period applied by the Court in the jurisdiction in which your action is filed. 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. '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 (Z0391)

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 THIRTY (30) CALENDAR DAYS of the date you receive the Commission's decision.

FOR THE COMMISSION:

Frances M. Hart
Executive Officer
Executive Secretariat