0120152244
11-19-2015
Vito E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vito E.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120152244
Agency No. 4B-100-0048-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 21, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Laborer Custodian at the Agency's Franklin D. Roosevelt Station in New York, New York.
On March 30, 2015, Complainant contacted the EEO Counselor alleging discrimination. When the matter was not resolved, Complainant was issued a Notice of Right to File a Formal complaint. On May 6, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Hispanic, Puerto Rican), age (71), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when:
1. On February 11, 2015, management refused to pay Complainant for Official Time for attending to EEO/EEOC matters;
2. On an unspecified date, management has refused to remove Complainant's name from an Agency bulletin board;
3. On November 19, 2014 and prior occasions, Complainant's official time hours have been replaced with annual leave or sick leave without his consent;
4. In November 2014, Complainant's personal equipment and locker have been vandalized several times and items were taken;
5. On December 9, 2014, Complainant was charged with five minutes of Leave Without Pay (LWOP); and
6. On an unspecified date, management refused his request to see a Maintenance Shop Steward.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant sought counseling on March 30, 2015, which was 47 days after the most recent event. The Agency indicated that Complainant had engaged in prior EEO complaints and was aware of the 45 day time limit. Therefore, the Agency found that the complaint as a whole.
The Agency then noted that claims (1) and (3) involve Complainant's assertion that he was denied Official Time. The Agency stated that these claims were referred to the Agency's EEO Regional Manager to determine if Complainant was in fact denied Official Time. As such, the Agency dismissed the claim pursuant to 29 C.F.R. �1614.107(a)(8) as a spin off complaint noting that the matter will be addressed by the Agency.
The Agency also dismissed claims (2) and (6) pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim. In claim (6), Complainant asserted he was denied Union representation. As to Complainant's name being listed on a bulletin board as alleged in clam (2), the Agency indicated that that board belongs to the Union and it is within the Union's business to decide what is posted on the board, not the Agency. Therefore, the Agency found that these claims constituted collateral attacks.
Finally, as for claims (4) and (5), the Agency dismissed these matters pursuant to 29 C.F.R. �1614.107(a)(1) for raising the same matter in a prior EEO complaint. The Agency noted that these two events were alleged in Complainant's prior EEO complaint filed on October 20, 2014 and amended on January 30, 2015. Therefore, the Agency dismissed the complaint as a whole.
Complainant appealed. As to claims (3) - (5), Complainant indicated that he did not receive an EEO case number for these issues nor did he amend any prior complaint. As for claim (2), Complainant asserted that the bulletin board is not the Union's board and it is management that has his name on the board. As for claim (6), Complainant asserted that he has not been given his rights. Finally, with respect to Official Time raised in claims (1) and (3), he indicated that he made his requests on March 2, 2015. Therefore, he raised the events in a timely manner. As such, Complainant requests that the Commission reverse the Agency's dismissal.
ANALYSIS AND FINDINGS
Claims (1) and (3)
In claims (1) and (3), Complainant asserted that he was denied Official Time. The provision of official time is governed by 29 C.F.R. � 1614.605, and regards complaint processing. Because it regards complaint processing, we do not construe Complainant's allegation about official time to constitute an additional claim of discrimination, rather it is a request for review of the denial of official time in accordance with 29 C.F.R. � 1614.605. The Agency has indicated that it is processing Complainant's assertion that he was denied Official Time. Therefore, we find that the Agency's dismissal of these claims as a claim of discrimination was appropriate.
Claim (2)
In claim (2), Complainant asserted that his name is on a bulletin board. The Agency asserted that the board was utilized by the Union while Complainant argued that it was management. Neither party provided any evidence to support their assertions about the board. Complainant failed to assert that this event was part of a claim of harassment or that the series of claims were connected. Therefore, we review the dismissal of this claim by itself.
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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Complainant asserted that he felt "mugged" by the display. There is no explanation on how his name is displayed on the board. There is also no indication how having his name on the board affected a term, condition or privilege of employment. Regarding complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. Complainant has not asserted that his name on the board would be reasonably likely to deter him or others from engaging in protected activity. Therefore, we find that claim (2) was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Claims (4), (5) and (6)
In these claims, Complainant asserted events that occurred between November and December 2014. EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 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. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
As noted above, these events occurred between November and December 2014. Complainant did not assert nor show that the events alleged were connected or constituted a claim of harassment. Complainant contacted the EEO Counselor on March 30, 2015, well beyond the 45 day time limit. We find that the dismissal of these events pursuant to 29 C.F.R. � 1614.107(a)(2) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the complaint at hand.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 19, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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