01a53489
08-05-2005
Jesse Olivar, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jesse Olivar v. United States Postal Service
01A53489
08-05-05
.
Jesse Olivar,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53489
Agency No. 1F-957-0012-05
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact and in accordance with 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 basis of reprisal for
prior EEO activity when:
He was subjected to harassment and reprisal discrimination after
he filed Form 1769, Report of Hazardous Condition on March 12, 2004,
against his supervisor regarding conditions at the agency's Air Mail
Field Post Office in Sacramento, CA; and
He was advised by agency officials not to file against his supervisor.
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 Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
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.
Here, the record indicates that complainant contacted the EEO Counselor
on January 13, 2005 regarding his claims of harassment and reprisal which
began March 12, 2004 as described in claim (1). Complainant has not
indicated that he was unaware of the relevant time period for seeking EEO
counseling or that he was otherwise prevented from timely initiating EEO
contact. Complainant's EEO contact on January 13, 2005 was well beyond
the applicable time limitation and on appeal, complainant has presented
no persuasive arguments or evidence warranting an extension of the time
for EEO contact.
Turning now to claim (2), the Commission finds that complainant has failed
to state a claim and that the agency's dismissal pursuant to 29 C.F.R. �
1614.107(a)(1) was proper.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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, .106(a). The Commission's federal sector case precedent has
long defined 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. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). With respect to claim
(2), that complainant was warned not to file against his supervisor,
the Commission finds that complainant has failed to demonstrate that he
suffered harm concerning a term, condition or privilege of employment.
Moreover, the incidents described in the instant complaint are not severe
and pervasive so as to alter the conditions of complainant's employment.
Finally, the Commission notes that the agency case file in this matter
indicates that a third issue regarding a last chance agreement and
complainant's subsequent termination was initially raised by complainant
during the informal processing of this complaint. This decision does
not address complainant's last chance agreement and/or his termination
in accordance with 29 C.F.R. � 1614.107(a)(2) which provides for the
dismissal of a claim that has not been brought to the attention of an EEO
Counselor and is not like or related to a matter on which complainant has
received counseling. Complainant is advised to contact an EEO Counselor
regarding these matters if he has not done so already.
Therefore, after careful review of the record, the agency's decision
dismissing complainant's complaint was proper and is AFFIRMED for the
reasons set forth herein.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
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 (S0900)
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. 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
____08-05-05______________
Date