01A22346_r
06-16-2003
Andrew Nash, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Andrew Nash v. United States Postal Service
01A22346
June 16, 2003
.
Andrew Nash,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22346
Agency No. 4G-780-0144-01
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 28, 2002, 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 bases of race (African-American), color, and reprisal for prior
EEO activity, when:
1. On June 20, 1995, her PS Form 991 was misplaced;
2. On October 27, 1998, she was ordered off the workroom floor;
3. On October 30, 1998, her supervisor followed her around on her route;
4. On an unspecified date, a supervisor used his position for personal
gain by soliciting the station manager to promote his wife;
5. On an unspecified date, a supervisor used his position to intimidate
and harass her by using 204Bs and other supervisors admitted that she
was a target;
6. On September 28, 1999, she reported to the Postal Inspection Service
that an EEO Complaint Investigator had stolen/altered her mail and EEO
investigative reports;
On October 6, 1999, she was given an official discussion for not calling
the station prior to 3:30 pm to report that she could not complete
delivery of the mail;
On October 25, 1999, a supervisor gave her an official discussion for
not providing documentation for her absence on October 25, 1999; and on
an unspecified date, a supervisor gave her an official discussion for
unauthorized overtime and called her into the office numerous times for
an official discussion;
On an unspecified date, the station manager instructed a carrier to
deliver mail in an unsafe environment and when she reported that the ID
badge to gain access to the General Mail Facility could not be found,
he did not notify the Postal Inspectors;
On an unspecified date, during a service talk, the station manager stated
that no one was allowed in the office because vital information may be
on the supervisor's desk;
On an unspecified date, a supervisor falsified his own time records and
took an extended lunch with a female carrier and complainant's believes
that a supervisor and the station manager are falsifying their time
to take long lunches; and on March 9, 2000, a supervisor falsified an
employee's time;
On an unspecified date, the station manager abused his power by issuing
punishment to carriers;
On July 18, 2000, an employee trained someone on how to order supplies
and she was not an authorized trainer;
On June 5, 2000, an employee carried a tray of letters to the Chimney
Corners Station in her own private owned vehicle;
In April 1998, a supervisor did not respond to her request for absence;
On an unspecified date, the Postal Inspectors failed to respond to
her calls;
Over a period of five years, she was denied EEO time having filed EEO
complaints against numerous supervisors and managers for harassment,
intimidation, retaliation, embarrassment, stalking, stealing her sick
leave and mail, falsifying/altering/destroying documents and manufactured
charges;
In 1997 through 1999, her EEO Cases 4G-780-1098-96; 4G-780-0073-98;
4G-780-1017-97; 4G-780-1039-96; 4G-780-1098-96 were dismissed, not
processed properly and not combined as she requested and most carriers
at Chimney Corners Station will not file an EEO because they are afraid;
On an unspecified date(s), the station manager questioned her about
medical documentation, did not use PS Form 1571 to curtail the mail,
and two supervisors were observed casing the mail;
On September 21, 2000, Postal Inspectors called to question management
about a customer's mail delivery complaint, but did not take her
complaints seriously;
On October 16, 1998, her paycheck was incorrect and leave and time
falsified;
On unspecified date(s) carriers on limited duty, who were unable to
perform carrier work, were placed out of sight of other carriers;
Since 1994, management allowed white carriers to visit other white
carriers at their case on the workroom floor, but did not allow black
employees to stop and visit;
On September 11, 2000, supervisors put a part-time flexible carrier's
life in danger when they ordered him to drive a vehicle without turn
signals to Chimney Corners Station; and from October 13 through 19, 2000,
carriers were complaining that a supervisor was showing favoritism to
a female carrier; and
25. On October 29, 2000, she filed complaints with the Chief Postal
Inspector, Inspector General of the Postal Service, Inspector General
of the Equal Employment Opportunity Commission (EEOC) and Manager EEO
Complaints Processing to look into the preceding matters.
The agency dismissed claims 1 through 3, claims 6 through 8, claims
13 through 15, claims 17 and 18, and claims 20 and 23 pursuant to
29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
Additionally, the agency dismissed claims 4 - 20 and claims 22 - 25
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Complainant has not challenged the framing of the complaint.
Untimely Contact with an EEO Counselor
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that the alleged discriminatory events in claims 1
through 3, claims 6 through 8, claims 13 through 15, claims 17 and 18,
and claims 20 and 23 occurred between 1994 and September 21, 2000.
The Commission also finds that claim 21 was untimely raised with an
EEO Counselor. Complainant has not claimed on appeal that any of the
incidents cited in these claims occurred within 45 days of November
29, 2000. We concur with the agency and find that complainant did not
initiate contact with an EEO Counselor until November 29, 2000, which
is beyond the forty-five (45) day limitation period. Complainant has
presented no persuasive arguments or evidence on appeal warranting an
extension of the time limit for initiating EEO Counselor contact.
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).
We find that complainant is not aggrieved as a result of the incidents
alleged in claims 4, 5, 9 - 12, 16, 19, 21, 22, 24, and 25. Nothing in
the record indicates that complainant suffered any harm or loss with
respect to a term, condition, or privilege of employment for which there
is a remedy. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Moreover, we do not find that, examining
the complaint as a whole, complainant has been subjected to harassment
that was sufficiently severe or pervasive to alter the conditions of
his 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
June 16, 2003
__________________
Date