01977017
10-07-1998
Charles Dagate, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Charles Dagate, )
Appellant, )
)
v. ) Appeal No. 01977017
) Agency No. 4D-280-0126-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was dated September
8, 1997. The appeal was postmarked September 15, 1997. Accordingly,
the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed six
allegations for failure to initiate contact with an EEO Counselor in a
timely manner, two allegations for failure to state a claim, and four
allegations for failure to cooperate.
BACKGROUND
The record indicates that on January 13, 1997, appellant initiated contact
with an EEO Counselor regarding his complaint. Informal efforts to resolve
his concerns were unsuccessful. On June 11, 1997, appellant filed a
formal complaint, alleging that he was the victim of unlawful employment
discrimination on the bases of race (Caucasian) and sex (male) when:
On or around November 1996, appellant was written up for tardiness while
two female employees who reported to work after him were subject to no
disciplinary action;
On March 7, 1997, a supervisor hit another employee;
On May 31, 1996, appellant's supervisor took no action after appellant
spoke to him about an incident which occurred on March 25, 1996, when
a coworker ("CW1") put his hands on appellant;
On May 26, 1996, a coworker bragged to appellant about pulling out a
pistol in the work area;
On September 27, 1996, another coworker ("CW2") put his hands on
appellant;
On October 15, 1996, appellant was forced to serve a suspension;
On November 22, 1996, appellant was forced to work with CW2;
On an unspecified date appellant was called a "scab" and no disciplinary
action was taken against the responsible employee;
On unspecified dates transitional employees were provided overtime
while appellant was not;
On unspecified dates appellant was singled out for discipline when he
was reprimanded for "goofing off;"
On an unspecified date, while on light duty, appellant was not
accommodated, but required by management to perform full duty work.
On September 8, 1997, the agency issued a final decision dismissing
allegations (1), (3), (4), (5), (6), and (7), pursuant to 29
C.F.R. �1614.107(b), for untimely EEO Counselor contact; allegations (2)
and (8), pursuant to 29 C.F.R. �1614.107(a), for failure to state a claim;
and allegations (8) through (11), pursuant to 29 C.F.R. �1614.107(g),
for failure to cooperate. Specifically, the agency found that the
incidents described in allegations (1), (3), (4), (5), (6), and (7)
took place more than forty-five (45) days from the date appellant sought
counseling. The agency determined that appellant failed to show how he
suffered harm with respect to the terms, conditions, or privileges of
his employment as a result of the incidents identified in allegations
(2) and (8), and was, therefore, not aggrieved. Finally, the agency
determined that because appellant's attorney failed to respond within
fifteen (15) days of her receipt of the agency's request for additional
information concerning the dates on which allegations (8) through (11)
occurred, dismissal was proper pursuant to 29 C.F.R. �1614.107(g).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex, and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age), the Rehabilitation Act (discrimination
on the basis of disability), and the Equal Pay Act (sex-based wage
discrimination) shall be processed in accordance with part 1614 of
the EEOC regulations. In addition, the U.S. Supreme Court has stated
that an employee is aggrieved when some personal loss or harm has been
suffered with respect to a term, condition, or privilege of employment.
See Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205
(1972). Specifically, an employee must allege and show a "direct,
personal deprivation at the hands of the employer, that is, a present
and unresolved harm or loss affecting a term, condition or privilege of
his/her employment". Taylor v. USPS, EEOC Request No. 05900367 (June 2,
1990); Hammonds v. USPS, EEOC Request No. 05900863 (October 31, 1990).
With regard to allegation (2), we find that appellant is not aggrieved.
The identified action, i.e. a supervisor hitting a coworker, did not
involve appellant personally. Accordingly, appellant failed to show that
he suffered harm with respect to the terms, conditions, or privileges
of his employment as a result of this action.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within forty-five (45) days of the effective date of
the action. The Commission has adopted a "reasonable suspicion" standard
(as opposed to a "supportive facts" standard) to determine when the
forty-five (45) day limitation period is triggered. See Ball v. USPS,
EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant complaint, the incidents identified in allegations (1),
(3), (4), (5), (6), and (7), occurred more than forty-five (45) days
from the date appellant initiated EEO Counselor contact. As appellant
offered no justification sufficient to extend the applicable time period,
we find that the agency correctly dismissed these allegations for untimely
EEO Counselor contact.
EEOC Regulation 29 C.F.R. �1614.107(g) provides that the agency shall
dismiss a complaint or a portion of a complaint when the agency has
provided the complainant with written request to provide relevant
information or otherwise proceed with the complaint, and the complainant
has failed to respond to the request within 15 days of its receipt.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information is available for that purpose.
The record reveals that on June 26, 1997, appellant's attorney received
a letter requesting additional information concerning allegations (8)
through (11). The letter properly notified appellant's attorney that
she had fifteen days from its receipt to respond with the relevant
information or those allegations could be dismissed pursuant to 29
C.F.R. �1614.107(g). The record contains no evidence that appellant's
attorney provided a response. Furthermore, we find that allegations (8)
through (11), absent the information requested, contain insufficient
information to proceed with processing. Consequently, we find that
the agency properly dismissed allegations (8) through (11) for failure
to cooperate.<1>
CONCLUSION
Accordingly, the agency's final decision dismissing all eight of the
allegations in appellant's complaint is AFFIRMED for the reasons set
forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
Oct. 7, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1Since we are affirming the agency's
dismissal of allegation (8) pursuant to 29 C.F.R. �1614.107(g),
we will not address the agency's alternative grounds for dismissal,
i.e., that it failed to state a claim.