0120073579
10-23-2007
Carlton Hoffman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carlton Hoffman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073579
Agency No. 4F-940-0080-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 9, 2007, 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)(1) & (2).
During the relevant period, complainant was employed as a part-time
regular city carrier with a California station of the agency. On May 1,
2007, complainant initiated contact with an Equal Employment Opportunity
(EEO) Counselor alleging that he was subjected to discrimination on the
bases of race (Caucasian), national origin (United States), religion
(unspecified), color (White), and reprisal for prior protected EEO
activity when the agency (1) issued him a letter of removal, effective
October 2006, for misplacing keys, (2) instructed him to wear two sets of
keys simultaneously and not use rubber-bands to attach the keys, and (3)
did not call him in to work on his non-scheduled days. Summarily, for
(1) and (2), complainant alleged that coworkers outside of his protected
classes were treated more favorably than he and, for (3), alleged that
the agency violated a settlement agreement executed a year before.
On July 9, 2007, the agency issued a final decision dismissing
complainant's complaint for untimely contact with an EEO Counselor
regarding (1) and failure to state a claim as to (2). In addition, the
agency noted that (3), the allegation of breach, would be referred to the
appropriate official for inquiry and a separate decision. Complainant
filed the instant appeal. On appeal, complainant stated that he initiated
EEO contact when he learned that the agency issued a coworker a letter
of warning for the same offense upon which it attempted to terminate
his employment. In addition, complainant stated that he is aggrieved
because he has to carry keys that dig into his legs and rip his pants.
In pertinent part, the EEOC Regulation found at 29 C.F.R. � 1614.107(a)(2)
allows an agency to dismiss a complaint that fails to comply with the
applicable time limits contained in 29 C.F.R. � 1614.105. EEOC Regulation
29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination
should be brought to the attention of an EEO 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.
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. Dep't 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. EEOC Regulations provide that the agency or the
Commission shall extend the time limits when the individual shows that
he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he was prevented by circumstances beyond his control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
Regarding (1), the Commission finds that complainant initiated EEO
contact outside of the statutory time-frame and failed to provide adequate
justification to warrant extension or waiver. Further, regarding (2),
we find that complaint fails to state a claim under the EEOC regulations
because 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 remedy. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Based on the above, we AFFIRM
the agency's final decision dismissing complainant's complaint.
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
October 23, 2007
__________________
Date
2
0120073579
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120073579