0120131146
06-27-2013
Craig S. Valentine, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Craig S. Valentine,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120131146
Agency No. 1K-291-0002-13
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 11, 2012, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Manager, Distribution Operations at the Agency's Columbia Processing and Distribution Center facility in Columbia, South Carolina.
On November 15, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (knees and stress) and age (55) when:
1. Between February 26, 2012 through March 4, 2012, Complainant's absence due to surgery was recorded as Absent Without Leave (AWOL);
2. On February 28 and March 21, 2012, Complainant was instructed to provide additional medical documentation for his absence;
3. On September 4, 2012, Complainant was subjected to an Investigative Interview; and
4. On October 3, 2012, Complainant's computer access was revoked.
The record shows that Complainant requested pre-complaint counseling on October 8, 2012. Claim One
The pertinent record shows that during an absence from February 26 through March 4, 2012, Complainant sick leave was recorded as AWOL. The Agency asserts that the AWOL designation was corrected, changing the 40 hours of AWOL for Pay Period 6 of 2012 to 40 hours of Sick Leave. The Agency acknowledged that the matter was not fully corrected because the 40 hours are still reflected as a standing LWOP (no-paid leave) entry on Complainant's bi-weekly pay stub. However, the Agency stated that Complainant suffered no harm with respect to his benefits and the entry on his pay stub would be gone at the start of the new fiscal year.
Claim Two
In addition, the Plant Manager sent Complainant letters requesting additional medical documentation to support Complainant's absence even though Complainant asserts that the Plant Manager was aware that Complaint was out on sick leave due to a planned knee surgery. Complainant had been out on long term paid sick leave since January 26, 2012.
Claim Three
The record also shows that on September 4, 2012, Complainant was subjected to an Investigative Interview regarding his absence, but no disciplinary action or adverse action was taken.
Claim Four
On October 3, 2012, the Plant Manager revoked all of Complainant's Postal computer access, reasoning that Complainant did not require access because he had been on leave for eight months.
On December 11, 2012, the Agency issued a final decision dismissing the complaint, concluding that Complainant had not provided any evidence to show that he was subjected to any adverse action or had been denied any entitlement in relation to a term, condition, or privilege of employment as a result of his allegations.
The Agency dismissed claims one and two for untimely EEO contact and found that Complainant provided no evidence that he was unaware of the time limit for contacting an EEO Counselor or was otherwise prevented by circumstances beyond his control from contacting the counselor within the time limits.
The Agency dismissed claims three and four as failing to state a claim.
The Agency also concluded that the AWOL issue had been rendered moot because the situation had been fully corrected and that there was no reasonable expectation that the alleged discrimination is likely to reoccur.
ANALYSIS AND FINDINGS
On appeal, Complainant asserts that his complaint was timely. He did not address the untimely EEO contact. Complainant maintains that management is not being truthful with regard to his requested claims or the requested relief, but he did not explain how he was aggrieved by any of the alleged actions.
The Agency did not submit a brief in opposition to the appeal.
Untimely EEO Contact
EEOC Regulation 29 C.F.R �1614.105(a)(1) requires that complaints of discrimination 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 Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061 (June 10, 2002). Some of Complainant's allegations were timely raised with the EEO counselor, but we do not find that all of his allegations are part of a single hostile work environment claim Therefore, we find the Agency did not err in dismissing claims one and two on timeliness grounds. We will consider those issues only as background in this case.
Failure to State a Claim
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, 1614.106(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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that he or she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In this case, Complainant alleges that, because of his age and alleged disability, the Agency subjected Complainant to disparate treatment and harassment, when Complainant was wrongfully listed as AWOL, asked to provide additional medical documentation, given an investigative interview and his computer access was modified. We find that Complainant's allegations are insufficient to state a claim of hostile work environment. Further, individually, Complainant did not show how he was harmed by being given an investigative interview or having his computer access removed when he was not reporting to work.
Upon review, therefore, we find that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim and pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO contact.
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 (S0610)
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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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
June 27, 2013
__________________
Date
2
0120131146
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131146