01A45338
11-29-2004
Whitt Phillips III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Whitt Phillips III v. United States Postal Service
01A45338
11-29-04
.
Whitt Phillips III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45338
Agency No. 4K-230-0188-04
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for failure to
bring the matter to the attention of an EEO Counselor and pursuant to 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 bases
of sex (male), disability (unspecified), and reprisal (unspecified) when:
In 1999, he could have been trained and promoted when his wife was
trained and promoted;
On July 18, 1999, while on a fishing trip, the Postmaster acknowledged
him and said he had to greet his wife first;
Since 1999, he was subjected to a hostile work environment when his wife
was allowed to supervise him;
In January 2004, he was interviewed but not awarded the position in
Transportation;
Since January 2004, he was refused permission to seek medical help and
assistance to correct his problems;
Since January 2004, he was assigned duties beyond his medical
restrictions;
Since January 2004, he was denied the reasonable accommodation of a hand
truck and a van;
On January 28, 2004, he was not provided with a PS Form 1769;
On January 29, 2004, a manager said to him, �well all I have for you to
do is collections, do you want to resign...�;
On April 3, 2004, a supervisor asked him why he did not scan a collection
box;
On April 13, 2004, a manager accused him of submitting safety issues to
cover his vehicle and threatened him with a fitness for duty examination
and possible removal;
On April 17, 2004, his leave was denied and he was marked Absent Without
Leave (AWOL);
On an unspecified date, he was not provided an employee evaluation as
he requested;
On an unspecified date, he was subjected to a hostile work environment
and humiliated by co-workers and labeled �a waste of time and slow�;
On an unspecified date, a supervisor stated he was going to be found unfit
because he was not completing the collection on time like everyone else;
On an specified date, his Postmaster became judgmental about him being
a member of the Afro American Postal League United for Success (APLUS)
Association and treated him in a demeaning way and intimidating manner
at work;
On unspecified dates, his supervisor did not reward him with a breakfast
like other carriers were rewarded;
On specified dates, a manager charged him Absent Without Pay (AWOP).
The record evidence shows that on February 2, 2004, complainant contacted
an EEO counselor regarding claims 9 and 11. On June 2, 2004, the agency
notified complainant of his right to file an EEO complaint and on June
11, 2004, complainant filed an EEO complaint which raised multiple claims
set forth herein.
The agency issued a FAD on July 2, 2004, dismissing claims 1-8, 10,
and 12-18, for failure to bring the matters to the attention of an
EEO counselor. The agency dismissed claims 2, 9 and 11, for failure
to state a claim.
We find that the agency's dismissal of claims 1-8, 10, and 12-18 was
proper. The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states,
in pertinent part, that an agency shall dismiss a complaint which raises
a matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to or
clarifies the original complaint and could have reasonably been expected
to grow out of the original complaint during the investigation. See
Scher v. United States Postal Service, EEOC Request No. 05940702 (May 30,
1995); Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990). In the present case, issues 1-8, 10, and 12-18, were
not brought to the attention of an EEO counselor and were not �like
and related� or did not grow out of claims 9 and 11, which were brought
to the attention of an EEO counselor. Accordingly, the agency properly
dismissed these claims.<1>
We further find that claims 9 and 11 fail to state a claim. With regard to
these claims, complainant has failed to show that he suffered a loss with
respect to a term, condition or privilege of employment. 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
___11-29-04_______________
Date
1 These claims are also dismissible either
because they failed to state a claim and/or because they were not
brought to the attention of an EEO counselor within 45 days of the
alleged discriminatory event.