01a04429
03-28-2001
Stanley D. Chronister, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Stanley D. Chronister v. United States Postal Service
01A04429
03-28-01
.
Stanley D. Chronister,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04429
Agency No. 4E-840-0021-00
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD) dated May 22, 2000, 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., and the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �
621 et seq. The appeal was postmarked June 5, 2000. Accordingly, the
appeal is timely pursuant to 29 C.F.R. � 1614.402(a), and is accepted
in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for untimely EEO Counselor contact on claim (1) and failure
to state a claim on claim (2).
BACKGROUND
On February 19, 2000, complainant filed a complaint alleging that he
was discriminated against because of his age (7/15/46) and retaliation
(prior EEO activity)<1> when:
1 On December 21, 1999, he was issued a Letter of Warning (LOW) dated
December 10, 1999; and
2 On December 30, 1999, he was allegedly threatened, in his absence,
by the Postmaster during a Step 2 Grievance meeting.
In the FAD, the agency dismissed claim (1) because the complainant did
not initiate contact with an EEO Counselor within 45 days of receiving
the LOW. The agency argued that even though complainant was familiar
with the EEO process through his previous EEO filings, he did not raise
this issue when he first sought EEO counseling on January 5, 2000, but
raised it for the first time when he filed his formal complaint which
made it untimely. The agency dismissed claim (2) because it found that
complainant had not established that he was aggrieved and therefore
failed to state a claim.
Complainant argues that he did contact an EEO Counselor in a timely
manner. In support of this claim, complainant argues that he did in
fact supply the December 23, and 20, 1999 narratives to the agency when
he filed the complaint in January. Further, he argues that if he had
been able to speak to an agency EEO Counselor, there would not have
been any confusion regarding the incidents. Complainant also argues
that by the time he received the agency's Notice of Final Interview,
thirty days had already elapsed since he initially sought counseling.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that the agency
shall dismiss a complaint that fails to state a claim under 29 C.F.R. �
1614.103 or � 1614.106(a). EEOC Regulations 29 C.F.R. � 1614.107(a)(2)
further provides that the agency shall dismiss a complaint that fails to
comply with the applicable time limits contained in 29 C.F.R. �� 1614.105,
1614.106 and 1614.204(c), unless the agency extends the time limits in
accordance with 29 C.F.R. � 1614.604(c).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of the EEO 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 45
days of the effective date of the action. EEOC Regulation 29 C.F.R. �
1614.107(a)(2) further provides that the agency shall dismiss a complaint
that raises a matter that has not been brought to the attention of a
Counselor and is not like or related to a matter that has been brought
to the attention of a Counselor.
The Commission must first make a determination whether complainant
was timely in seeking EEO counseling on claim (1). The record
shows that the agency date-stamped the materials received from the
complainant relating to his initial EEO contact on January 5, 2000
when it was received on January 18, 2000, and the materials relating
to his formal complaint when it was received on February 22, 2000.
The material received on January 18, 2000 consisted of the completed
�Information for Precomplaint Counseling� form, filed January 15, 2000,
wherein the complainant alleged that he was subjected to reprisal (prior
EEO activity) when he was threatened by the Postmaster during a Step 2
Grievance meeting at which he was not in attendance. Complainant also
attached a letter relating to the threat, dated December 30, 1999, and
a copy of a document relating to Violence and Behavior in the Workplace.
The materials received on February 22, 2000 consisted of the formal
complaint form wherein complainant alleged that he was being discriminated
against because of his age (7/15/46) and retaliation (prior EEO activity)
when on December 21, 1999, he was issued a Letter of Warning (LOW) dated
December 10, 1999. Complainant also made reference to attached narratives
dated December 23 and 30, 1999, as well as a witness statement.
There is no reference to the LOW on complainant's PreComplaint Counseling
form, nor is there any indication on the form that the agency should look
for information relating to the LOW as there was on his formal complaint.
In its response to complainant's appeal, the agency argued that Part C of
that form provides space for a description of the incident or activity
which generated the request for EEO Counseling. Complainant made no
mention of the LOW. Rather he described what he had been told took
place at a grievance meeting (which he was absent from) regarding the
inspection of his letter carrier routes. The agency further argued that
Part E of the form provides space to describe the resolution sought by
the person seeking counseling. Again complainant made no mention of a
LOW but rather, addressed alleged threats to him made by the Postmaster.
Further, complainant made no mention of the crucial fact that the agency
had not properly identified all the claims relevant to his complaint
in the Notice of Final Interview when he filed his formal complaint.
Instead he submitted a complaint which made the LOW the basis of his
claim and refers the agency to the December 30, 1999 narrative relating
to the threat. A review of the record shows that complainant has failed
to introduce any evidence proving that the agency deliberately failed
to accurately report his complaints. Therefore, the agency decision
to dismiss claim (1) as untimely was correct, and we further find that
the LOW was not like or related to the alleged threat in claim (1).
The second issue before the Commission, is whether the agency properly
dismissed claim (2) for failure to state a claim. 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). The Commission has also repeatedly found that remarks
or comments unaccompanied by a concrete agency action are not a direct
and personal deprivation sufficient to render an individual aggrieved
for the purposes of the statutes over which EEOC has jurisdiction. See
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997) Backo v. United States Postal Service, EEOC Request No. 05960227
(June 10, 1996); Henry v. United States Postal Service, EEOC Request
No. 05940695 (February 9, 1995). Here, complainant claimed that he
was allegedly threatened, in his absence, by the Postmaster during a
Step 2 Grievance meeting. There is no evidence in the record that a
concrete action accompanied this threat. We find, further, that the
Postmaster's alleged comment was not sufficiently severe as to rise to
the level of an actionable claim of retaliatory harassment. We find,
therefore, that claim (2) fails to state a claim.
CONCLUSION
Upon review, the Commission finds that the agency properly dismissed
complainant's complaint for untimely EEO contact on claim (1), and for
failing to state a claim on claim (2). Accordingly, the agency's final
decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
_03-28-01_________________
Date
1Complainant did not provide the statutory basis for his previous EEO
complaint.