0120092522
12-18-2009
Charles R. Hunt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Charles R. Hunt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120092522
Agency No. 1H302002409
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated April 21, 2009, 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. For the following reasons, the Commission AFFIRMS
the agency's final decision.
ISSUE PRESENTED
Whether the agency properly dismissed complainant's complaint on the
grounds that he failed to seek EEO counseling on the issues set forth
in his complaint.
BACKGROUND
The record shows that at the time of the alleged discriminatory actions,
complainant was employed as a Building Equipment Mechanic at the agency's
Duluth, Georgia, North Metro facility. Complainant's contentions arise
from the alleged conduct of management. On February 6, 2009, in his
interview with an EEO counselor, complainant alleged that the agency
discriminated against him when: (i) on December 5, 2008, management
deleted his clock rings and charged him 5.5 hours LWOP (union); and
(ii) on December 25, 2008, he was not paid premium pay for working on
Christmas Day. After being a notice of final interview, complainant filed
a formal complaint, dated April 21, 2009. Notwithstanding the issues
that complainant sought counseling on, his complaint alleged that the
agency discriminated against him in retaliation for prior protected EEO
activity when: (1) management subjected him to "special work standards;"
and (2) management subjected him to "increased surveillance."
In its final decision, the agency dismissed claims (1) and (2) on the
grounds that complainant had not previously brought these matters to
the attention of a counselor and that they were not "like or related"
to the matters complainant brought before the counselor. Moreover,
the agency found that claims (1) and (2) fail to state a claim of
discrimination pursuant to 29 C.F.R. �1614.107(a).
CONTENTIONS ON APPEAL
In his appeal brief, as presented by his representative, complainant
contends that the agency improperly dismissed his claim of discrimination.
Complainant contends that he has presented adequate facts to support
a prima facie claim of discrimination in retaliation for prior EEO
activity. Complainant also contends that he was subjected to increased
management surveillance. Finally, though not previously raised in his
formal complaint, complainant contends that, during mediation, the EEO
Counselor/ADR Specialist failed to act as a neutral party, and instead,
acted as an advocate for the agency. On these bases, complainant requests
that his appeal be granted and the complaint be remanded to the agency
for an investigation.
The agency asks that we affirm its dismissal of complainant's complaint.
ANALYSIS AND FINDINGS
Initially, we note that, pursuant to EEOC Management Directive for 29
C.F.R. � 1614, 3-8 (November 9, 1999), nothing said or done in attempts
to resolve a complaint through ADR can be made the subject of an EEO
complaint. Accordingly, complainant's assertions regarding the EEO
Counselor/ADR Specialist will not be addressed.
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).
Claims (1) and (2)
Applying the foregoing standard to the facts presented in the instant
case, we note that complainant failed to bring claims (1) and (2) to the
attention of an EEO Counselor. The respective claims were raised for
the first time in complainant's formal complaint. Based on a thorough
review of the record, we find that the claims are not like or related
to the matters that were brought to the attention of the EEO Counselor,
i.e., they do not add to or clarify the original matters complainant
sought counseling on nor would they have been expected to have grown out
of an investigation of those matters, which concerned specific time and
pay issues arising on December 5 and 25, 2008.
CONCLUSION
After a careful review of the record and contentions on appeal,
including those not specifically addressed herein, we find that the
agency's dismissal of the complaint was proper and hereby AFFIRM the
final agency decision.
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
_______12/18/09___________
Date
2
0120092522
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092522