0120091031
05-12-2009
Brian M. Spears, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brian M. Spears,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091031
Agency No. 4F-900-0353-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated November 12, 2008, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a).
During the relevant period, complainant was employed as a Maintenance
Mechanic at a Santa Monica, California facility of the agency.
On July 16, 2008, complainant initiated contact with an EEO Counselor
alleging that the agency discriminated against him on the bases of race
(Caucasian), color (white), disability (unspecified mental) and reprisal
for prior protected EEO activity when (1) on May 21, 2008, management
assigned him to repair a mechanical lock on a truck and did not pay
him higher level wages, (2) on May 28, 2008, he learned that a female
carrier was allowed to work on red-book labels in an agency conference
room although he was told that he could not do so, and (3) June 24,
2008, a custodian was taught to perform locksmith tasks and complainant
had to complete custodial and clerk duties. In a formal EEO complaint
dated October 22, 2008, complainant reiterated the same claims.
In its November 12 final decision, the agency dismissed (1) and (2)
pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO contact, and
(2) and (3) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. The instant appeal from complainant followed. On appeal,
complainant stated that he filed his complaint in a timely manner and
included medical bills indicating therapeutic care between December 2007
and October 2008.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity 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 forty-five (45) days of the effective date of the action. Regarding
(1) and (2), the record discloses that complainant initiated contact
with an EEO Counselor on July 16, 2008, which is outside the forty-five
(45) day limitation period required by 29 C.F.R. �� 1614.105(a)(1)
& .107(a)(2). Further, we find that complainant failed to present
persuasive arguments to warrant waiver of the regulatory time-frame.
Additionally, as to (2) & (3), we find that the incidents fail to state
a claim under EEOC regulations. Complainant failed to show that he
suffered harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy1 or that the actions as alleged are
sufficiently severe or pervasive to alter the conditions of complainant's
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Based on the above, we AFFIRM the agency's final decision dismissing
complainant's complaint.
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
May 12, 2009
__________________
Date
1 See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
??
??
??
??
2
0120091031
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091031