01A14320_r
11-20-2002
Clifton Sherard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Clifton Sherard v. United States Postal Service
01A14320
November 20, 2002
.
Clifton Sherard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14320
Agency No. 4D-230-0162-99
Hearing No. 120-AO-3666X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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.
The record reveals that complainant, a Letter Carrier at the agency's
Virginia Beach, Virginia facility, initiated EEO Counselor contact
on March 30, 1999. After informal attempts at resolving complainant's
claims failed, complainant filed a formal EEO complaint on July 12, 1999,
alleging that the agency had discriminated against him on the bases of
race (African-American) and sex (male). In his complaint, complainant
alleged that the agency subjected him to unlawful discrimination when:
On December 4, 1998, the Station Manager (S)refused him the chain of
command to get the problem solved;
On December 4, 1998, the Station Manager told him to block a black
family's driveway;
On February 11, 1999, S refused to hear his concerns about the continual
problem with a customer and the situation as he indicated in writing
to a union official;
On March 3, 1999, he was issued a Letter of Warning for failure to
follow instructions;
On March 13, 1999, S blocked him in the men's restroom and refused to
let him pass by;
On April 23, 1999, S failed to communicate with him regarding a grievance
and fabricated details that were intended to humiliate him and damage
his reputation;
On June 18, 1999, S made false official statements to the EEO
Investigator and union officials by stating that the cited comparison
employees are excellent employees and they have not had problems with
them; and
On an unspecified date, S and his supervisor failed to abide by the
duties of their managerial and supervisor positions as outlined on PS
Form 1998.
On December 9, 1999, the agency issued a final decision that it identified
as �Partial Acceptance/Partial Dismissal of Formal EEO Complaint.�
Therein, the agency dismissed claims 1 - 3 for untimely EEO Counselor
contact and claims 5 - 8 for failure to state a claim. The agency accepted
claim 4 for investigation. The agency properly advised complainant that
he could raise his objections to the agency's dismissals of these claims
with the Administrative Judge when the remaining claim 4 is adjudicated
and/or on appeal when final action was taken on accepted claim 4.
At the conclusion of the investigation of claim 4, complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ issued a decision without a
hearing, finding no discrimination. Specifically, the AJ found that
complainant failed to demonstrate that similarly situated employees
not in complainant's protected classes were treated differently under
similar circumstances. Alternatively, the AJ dismissed claim 4 on
the grounds that was moot. The AJ did not specifically address the
agency's dismissals of claims 1 - 3 and 5 - 8. The agency's final order
implemented the AJ's decision.
Claims 1- 3
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.
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. Department 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.
The Commission finds that the agency properly determined that claims 1 -
3 were untimely raised with an EEO Counselor. The matters alleged in
claims 1 and 2 occurred on December 4, 1998, and the matters alleged
in claim 3 occurred on February 11, 1999. Complainant initiated EEO
Counselor contact on March 30, 1999, more than forty-five days after the
events alleged in claims 1 - 3. On appeal, complainant fails to present
any arguments that would warrant a waiver or extension of the applicable
time limits. Consequently, we AFFIRM the agency's dismissal of claims 1 -
3 for untimely EEO Counselor contact.
Claims 5 - 8
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).
Upon review, the Commission determines that complainant failed to specify
how the alleged actions in claims 5-8 resulted in harm or loss to his
conditions, privileges, or conditions of employment. Consequently,
we AFFIRM the agency's finding that claims 5 - 8 fail to state a claim.
Claim 4
On appeal, complainant reiterates arguments previously made at the
hearing and contends that he has demonstrated a prima facie case of
discrimination based on his race and sex. In response, the agency
requests that we affirm its final order.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. �1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is �genuine� if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
After a careful review of the record, the Commission finds that the
AJ's grant of summary judgment was appropriate, as no genuine dispute of
material fact exists. We find that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws.
Accordingly, the Commission AFFIRMS the agency's final order, implementing
the AJ's decision on claim 4.<1>
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
November 20, 2002
__________________
Date
1Because we are affirming the AJ's finding of
no discrimination, we will not address the AJ's procedural determination
that claim 4 is moot.