0120100513
04-21-2010
Stanley M. Stachelek, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Stanley M. Stachelek,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120100513
Agency No. 4B028005209
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 8, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of sex (male) when:
1. since September 2007, he was not afforded the same opportunities to
serve in a higher level assignment [as a 204B acting supervisor];
2. from December 2008 to March 2009, he was not allowed to be on automatic
clock rings and was required to punch a time card;
3. in April 2009, he was brought back early from a detail opportunity;
and
4. in August 2009, the postmaster delayed getting him access to the
necessary computer programs for a detail assignment.
Complainant is stationed as a letter carrier with the Bristol Post Office
in Bristol, Rhode Island. In September 2007, he made a written request
to his postmaster to serve as a 204B in local offices. In December 2008
or January 2009, he got a detail as a 204B in North Kingstown. In March
2009, complainant was called back to Bristol. The postmaster indicated
that there was a shortage of letter carriers. Complainant expressed
an interest in another 204B assignment, and the Bristol Postmaster took
steps to facilitate this.
In July 2009, the Bristol Postmaster secured an opportunity for
complainant to be detailed around August 2009 for two weeks as a 204B
in Pawtucket, Rhode Island. Complainant wrote that 10 days before
the detail was to begin, he asked his Postmaster to approve computer
programs he needed so he would be prepared to work on the first day of
his assignment. Complainant stated that after some delay, the Postmaster
said that she was no longer his approver. According to the EEO counselor,
the Bristol Postmaster said there was a mix-up in the finance number for
complainant's detail that delayed his getting access to computer programs,
that this would not have affected the detail, and the person she sent
in complainant's stead did not get access to the programs ahead of time.
Complainant declined the detail. According to the Postmaster, complainant
explained that he did not feel comfortable supervising carriers when
he received discipline. In his complaint, complainant wrote that the
discipline was not the main reason for his declination, rather, the
successful implementation of the necessary programs was the reason.
The agency dismissed claims 1, 2 and 3 for failure to timely initiate
EEO counseling. It reasoned that the last event occurred in April 2009,
but complainant did not initiate EEO counseling until August 10, 2009,
beyond the 45 calendar day time limit. It dismissed claim 4 for failure
to state a claim, reasoning complainant was not harmed.
On appeal, complainant writes that his complaint is basically that he
was disparately treated concerning being detailed as a 204B, and he
should have gotten more time as a 204B.
An aggrieved person must seek EEO counseling within 45 days of
the date of the alleged discriminatory action, or in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. � 1614.105(a)(1) & .107(a)(2). The time limit to seek EEO
counseling shall be extended when an individual shows he did not
know and reasonably should not have known that the discriminatory
action or personnel action occurred. 29 C.F.R. � 1614.105(a)(2).
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.
In his complaint, complainant indicated that he did not realize he was
being treated differently until an unspecified point in time, and his
complaint is really one issue. The record contains pointed emails by
complainant sent in April 2009 to the Bristol Postmaster aggressively and
repeatedly questioning why he did not get more 204B details. These emails
show complainant had a reasonable suspicion of discrimination by April
2009, and likely before. Complainant also argues that his complaint
basically involves one thing, not getting 204B opportunities, and
hence he timely initiated EEO counseling. Working as a 204B, however,
involves discrete opportunities to act as such, such as outside details
or assignments in Bristol. As such, each loss of opportunity triggered
a new clock for initiating EEO counseling. National Railroad Passenger
Corporation v. Morgan, Jr., 536 U.S. 101, 113 (2002). Accordingly,
claims 1, 2 and 3 are untimely.
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 Postmaster
stated that not having advanced access to computer programs would not
have affected the 204B detail complainant was granted and declined,
and the person sent in his stead had no advanced access. On appeal,
complainant does not address this, rather he writes his complaint is
basically about being disparately treated regarding detail opportunities.
We find that complainant has not shown that his failure to get advanced
computer access harmed him. Accordingly, claim 4 fails to state a claim.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 21, 2010
__________________
Date
2
0120100513
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100513