0120081467
05-30-2008
Daniel C. Givens, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel C. Givens, III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081467
Agency No. 1G-761-0010-08
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated January 3, 2008, 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., 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. Complainant alleged
that he was subjected to discrimination on the bases of race (Caucasian &
American Indian), sex (male), disability (hearing/peripheral neuopathy),
and age (64) when:
1. on unspecified dates he was subjected to hostile work environment
harassment with regards to safety, work standards, duty performance, was
verbally and physically assaulted; and when the incidents were reported
he was met with resistance to investigate,
2. in April 2005, August 2006, and July 2007, management tried to stop
him from pursuing safety issues,
3. on August 16, 2007, he was placed on leave without pay (LWOP), and
4. on September 18, 2007, he was issued a Notice of Proposed Removal
dated September 13, 2007.
The FAD dismissed claims 1, 2 and 3 pursuant to 29 C.F.R. �
1614.107(a)(2), i.e., for raising matters that have not been brought
to the attention of an EEO counselor and are not like and related to
a matter that has been brought to the attention of an EEO counselor.
The FAD advised complainant that he must contact an EEO counselor
within 15 days of its receipt he wanted counseling on those claims, and
the date of counselor contact would be deemed to be December 13, 2007
(when the formal complaint was filed). The FAD also dismissed claim
2 for failure to state a claim, reasoning complainant was not harmed,
and claims 2 and 3 for failure to timely initiate contact with an EEO
counselor. The FAD dismissed claim 4 for failure to state a claim,
reasoning that it regarded a proposal to take an action. The FAD also
found that while complainant raised the proposal during counseling,
he did not allege it in his complaint, hence abandoning this claim.
In response to complainant's appeal, the agency argues that that claim
4 should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(5), i.e., for
alleging that a proposal to take a personnel action is discriminatory.
On appeal, complainant makes no comment.
The record reflects that following alleged misconduct by complainant
on August 16, 2007, the agency placed complainant on emergency LWOP
off-duty status. He was notified of this by letter dated August 17, 2007.
Thereafter, by letter dated September 13, 2007, complainant was notified
he would continue off-duty and would be placed in administrative leave
status upon receipt of the letter, which would continue for 30 days.
The agency also issued a notice of proposed removal dated September 13,
2007, charging complainant with misconduct. The charged misconduct
included complainant on August 16, 2007, shouting and yelling, refusing
to follow a manager's direct instructions, throwing a badge making a
gouge in the wall, assaulting and taunting the manager, disrupting the
workplace, and then, after being escorted off the premises, reentering
the facility through a window without authorization.
A review of the record shows that complainant did not raise claims 1 and
2 with an EEO counselor, and that these claims are not like or related
to claims 3 and 4. Accordingly, the FAD's dismissal of claims 1 and 2
pursuant to 29 C.F.R. � 1614.107(a)(2) is affirmed.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) and .107(a)(2). This time limit shall be extended for
reasons considered sufficient by the agency or Commission. 29 C.F.R. �
1614.105(a)(2). Complainant initially sought EEO counseling on October
19, 2007; and did not raise claim 2 until filing his complaint on December
13, 2007 (this is the date we deem complainant to have initiated EEO
counseling contact regarding this claim), which is beyond the 45 calendar
day time limit. Complainant does not explain his delay. Accordingly,
the FAD's dismissal of claim 2 for untimely counseling is affirmed.1
A review of the record shows that complainant raised claim 4 in his postal
Information for Pre-Complaint Counseling form, and the counselor's
report indicates he raised claims 3 and 4 with the EEO counselor.
Claim 3 is like or related to claim 4. They both arise from many of
the same events. Accordingly, we decline to uphold the finding in the
FAD dismissing claim 3 for raising matters that have not been brought
to the attention of an EEO counselor and are not like and related to a
matter that has been brought to the attention of an EEO counselor.
The FAD also dismissed claim 3 for failure to timely initiate contact
with an EEO counselor. It found that complainant did not contact an EEO
counselor until October 19, 2007, beyond the 45 calendar day time limit.
We agree. Complainant has not explained his delay. Accordingly, the
FAD's dismissal of claim 3 for being untimely counseled is affirmed.
Finally, the dismissal of claim 4 is affirmed for alleging that a proposal
to take a personnel action is discriminatory. 29 C.F.R. � 1614.107(a)(5).
We need not address the other grounds for dismissal.
Accordingly, the FAD's dismissal of the complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
May 30, 2008
__________________
Date
1 The FAD also dismissed claim 2 for failure to state a claim. As we
affirm its dismissal of this claim on other grounds, we need not address
whether claim 2 failed to state a claim.
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0120081467
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081467