0120093254
01-26-2010
Donald R. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donald R. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093254
Agency No. 1E641002209
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 16, 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.
At the time of the events at issue, complainant was a Transportation
Supervisor at the agency's Processing and Distribution Center in Kansas
City, Missouri. According to the agency, in his formal EEO complaint,
complainant alleged that he was subjected to discrimination on the basis
of reprisal for prior protected EEO activity when:
1. In December 2006, complainant was reassigned from Tour 2 (from 0700
to 1530) to Tour 1 (from 2300 to 0730).
The agency issued a decision on June 22, 2009, notifying complainant
that it was dismissing claim 1 for untimely EEO Counselor contact.
In that decision, the agency further notified complainant that it was
accepting another claim for investigation raised by complainant during
EEO counseling. That second claim was identified by the agency as:
2. On March 10, 2009 complainant was issued a Letter of Warning (LOW) in
Lieu of a 14-Day Suspension for 'Failure to Perform your Duties/Failure
to Follow Instructions', and subsequently in April 2009 complainant was
charged with being Absent Without Leave (AWOL).
The decision further stated that complainant could not yet appeal the
dismissal, but that he would be able to do so once the agency issued a
Final Agency Decision (FAD) on claim 2.
The instant FAD was issued on July 16, 2009. The FAD addressed claim 2
only, and dismissed the claim, without an investigation, on the grounds
that complainant had abandoned the claim. Specifically, the agency
found that complainant had mentioned the LOW and AWOL charge at the
EEO counseling stage, but did not raise them in his formal complaint,
which only mentioned the reassignment from Tour 2 to Tour 1. Because
complainant did not raise the issues in claim 2 in the formal complaint,
the FAD concluded that complainant had abandoned claim 2 and therefore
failed to state a claim.
On appeal, complainant argues that the June 22 and July 16, 2009 agency
decisions are contradictory because the earlier decision said claim 2
is being accepted for investigation, while the later decision said claim
2 was not being accepted.
Following a review of the record, we AFFIRM the dismissal of both claims.
With regard to claim 1, the record shows that complainant's Tour
was changed in December 2005 or 20061. 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 record, however, shows
that complainant did not contact an EEO Counselor regarding this matter
until March 11, 2009, which is well beyond the 45-day regulatory limit
whether the Tour change occurred in December 2005 or 2006. On appeal,
complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
With regard to claim 2, while the agency initially accepted the matter
for investigation, it subsequently dismissed claim 2 finding that
complainant failed to state claim because the LOW and AWOL matters were
not addressed in the Formal Complaint. Under 29 C.F.R. � 1614.106 "A
complaint must contain a . . . statement from [the aggrieved or his/her
representative]. . . . [s]ufficiently precise to . . . describe generally
the action(s) or practice(s) that form the basis of the complaint."
Because the formal complaint does not describe or even raise the LOW
or AWOL issues, these issues do not form part of the instant complaint.
The fact that the agency initially told complainant that claim 2 was being
accepted, only to subsequently dismiss the claim, may be understandably
confusing to complainant, but amounts to no more than harmless error.
EEOC Regulation 29 C.F.R. � 1614.107(a) allows an agency to dismiss a
complaint on procedural grounds any time prior to a request for a hearing.
As the agency issued the instant dismissal prior to even commencing the
investigation, it still had the authority to do so.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
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
January 26, 2010
__________________
Date
1 In box 15 in the Formal Complaint Form asking for the "dates on
which alleged act(s) of discrimination took place" complainant wrote
"Dec 2005" but in box 16 which asks for specific descriptions of the
events, complainant wrote "December 2006" and it appears the date "2005"
is crossed out.
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0120093254
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093254