0120073657
08-25-2009
Chung Chen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Chung Chen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120073657
Hearing No. 480-2006-00362X
Agency No. 1F-904-0045-06
DECISION
On August 17, 2007, complainant filed an appeal with this Commission
when the agency failed to respond to his claim that it had not complied
with its April 12, 2007 final order. 29 C.F.R. � 1614.504(b).
ISSUE PRESENTED
Whether complainant raised his claim that the agency failed to comply
with its final order in a timely manner.
BACKGROUND
The record reveals that during the relevant time period, complainant was
employed by the agency as a part-time flexible Parcel Post Distribution
Clerk at the Los Angeles, California Bulk Mail Center. On May 6,
2005, complainant applied for the position of full-time clerk Training
Technician, level PS-6. The agency did not select complainant for
the position.
Complainant filed an EEO complaint in which he alleged that the agency
discriminated against him on the basis of national origin (Chinese) when
it failed to select him for a Training Technician position, in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. After conducting a hearing on complainant's complaint,
the Administrative Judge (AJ) found that complainant was subjected to
national origin discrimination. Consequently, the AJ ordered the agency
to place complainant in a Training Technician position or comparably
graded full-time career PS-6 position; pay complainant the difference in
pay and benefits between his part-time flexible position and the Training
Technician position; and, post a notice of the finding of discrimination
at the Los Angeles Bulk Mail Facility. In a final order dated April 12,
2007, the agency fully implemented the AJ's decision.
On May 15, 2007, the agency offered complainant a Dock Clerk position,
PGS0-6, and gave him the option of working four different schedules.
On May 21, 2007, complainant accepted a Dock Clerk position with an
8:30 a.m. to 5:00 p.m. work schedule and Tuesdays and Wednesdays off.
However, complainant noted that "this is not [a] comparably graded
position" on the acceptance form. On June 5, 2007, complainant informed
the Manager of Distribution Operations that "after considering the facts,"
he would like to have a Training Technician position. On June 14, 2007,
the Senior Manager of Distribution Operations informed complainant that
it complied with its final order by offering and placing complainant in
a full-time level 6 Dock Clerk position. In a letter dated July 3,
2007, complainant informed a Plant Manager, Human Resources Manager,
Labor Relations Manager, union official, and the AJ that he believed that
the Dock Clerk position was not comparable to the Training Technician
position. In another letter to the AJ dated July 9, 2007, complainant
alleged that the agency failed to comply with its final order.
In a letter to the agency's EEO Director dated July 13, 2007, complainant
alleged that the agency failed to comply with its final order. On appeal
to the Commission, complainant maintains that the Dock Clerk position
into which the agency placed him is "not equivalent" to the Training
Technician position because unlike the Training Technician position,
the Dock Clerk position involves working in cold weather and rain,
pulling and straining on doors, and working on Saturdays and Sundays.
The agency argues that complainant's claim of non-compliance should be
dismissed as untimely because he did not notify the EEO Director of his
claim in a timely matter. The agency further argues that the Dock Clerk
position is comparable to the Training Technician position because the
Dock Clerk position features only minimal exposure to cold and rain in
Los Angeles' temperate climate. The agency also argues that the only
manual labor complainant did in the Dock Clerk position was lifting and
lowering dock and trailer doors, and complainant was given the option
of schedules, including one that featured Saturdays and Sundays off.
Additionally, the agency maintains that it posted a notice of the finding
of discrimination in the lobby of the Los Angeles Bulk Mail Facility
from April 26, 2007 until June 26, 2007.
ANALYSIS AND FINDINGS
Under 29 C.F.R. � 1614.504, if a complainant believes that the agency
has failed to comply with the terms of a final action, he shall notify
the EEO Director in writing of the alleged noncompliance within thirty
days of when he knew or should have known of the alleged noncompliance.
In this case, complainant was offered the Dock Clerk position on
or about May 15, 2007, and accepted the position on May 21, 2007.
Although complainant informed management that he wanted to be placed
into a Training Technician position on June 14, 2007, he did not properly
raise his non-compliance claim with the EEO Director until July 13, 2007,
more than 45 days after the agency offered and complainant accepted
the Dock Clerk position. Even complainant's initial notice to the AJ
of the agency's alleged non-compliance occurred after the 30-day time
limit. We note that the AJ's March 6, 2007 order entering judgment
apprized complainant that he must notify the agency's EEO Director in
writing of any alleged non-compliance with its final action within 30
days of the date complainant knew or should have known of the alleged
noncompliance, yet complainant did not notify the EEO Director of the
alleged non-compliance in a timely manner.
Finally, we also note that that complainant also claimed that the
agency failed to comply with its final order by posting a notice of
discrimination. The record contains a copy of a notice of discrimination
that the agency maintains was posted concerning complainant's case.
The notice states that the agency was found to have discriminated against
an employee based on his protected EEO activity when he was given an
undesirable work assignment and did not receive shift assignments.
The notice further states that the agency was ordered to calculate
back pay, expunge the employee's record, and provide EEO training to
responsible management officials. The notice also states that it was
posted on April 26, 2007 until June 26, 2007 pursuant to a Commission
order dated March 6, 2007. The Manager of Distribution Operations
submitted a statement attesting that the notice was posted in the lobby
of the Los Angeles Bulk Mail Facility from April 26, 2007 until June
26, 2007. Complainant ostensibly contends that the order is deficient
because it does not reflect that he was "awarded" a position because of
a finding of discrimination.
Upon review, we determine that complainant should have known of the
alleged non-compliant notice in its lobby on or about April 26, 2007.
However, complainant waited until July 13, 2007 to notify the EEO Director
of the alleged non-compliance, which is well beyond the 30-day time limit.
Complainant has not presented any argument that would warrant a waiver or
extension of the applicable time limits. Thus, we DISMISS complainant's
non-compliance claims on the basis that they were untimely raised to
the EEO Director.
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
___08/25/09_______________
Date
2
0120073657
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120073657