01A05550_r
03-26-2001
Ernest Rhodes Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ernest Rhodes Jr. v. United States Postal Service
01A05550
March 26, 2001
.
Ernest Rhodes Jr.,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05550
Agency No. 1-H-322-0031-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 28, 2000, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of race (Black) when:
On August 11, 1999, complainant was not allowed to return to Mail
Processing, and
On March 7, 2000, complainant was given a discussion regarding clock
rings.
The agency dismissed claim (2) pursuant to the regulation set forth at
29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically,
the agency stated that complainant failed to suffer a personal harm as
a result of the official discussion. The agency dismissed claim (1)
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. The agency stated that complainant
first contacted an EEO Counselor on March 28, 2000, which was beyond
the forty-five (45) day limitation period for timely counselor contact.
On appeal, complainant noted that in 1996, management allowed another
employee (Person A) who had switched from the mail handler's craft to
the maintenance craft to return to the mail handler's craft upon Person
A's request. Thus, complainant claimed that the agency's refusal to
allow him to return to the mail handler's craft, was due to racial
discrimination. Complainant also stated that the reason he waited past
the time allotted to file an EEO complaint was due to the fact that he
believed management would eventually return him to his original craft.
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).
This Commission has consistently held that official discussions alone do
not render an employee aggrieved. See Miranda v. United States Postal
Service, EEOC Request No. 05920308 (June 11, 1992); Devine v. United
States Postal Service, EEOC Request Nos. 05910268, 05910269 and 05910270
(April 4, 1991). In the present case, we find no claim by complainant
that the discussion was recorded in any personnel or supervisory files,
nor that it can be used as a basis for any subsequent disciplinary action.
See Divine, supra. Thus, we find that the agency properly dismissed claim
(2) for failure to state a claim.
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.
In the present case, we find that the agency properly dismissed
claim (1) for failure to timely contact an EEO Counselor. The alleged
discriminatory agency action occurred on August 11, 1999. Complainant did
not contact an EEO Counselor until March 28, 2000, which is approximately
six months beyond the applicable limitation period. Upon review of
the record, we find that complainant knew or reasonably should have
known that the agency's actions on August 11, 1999, were discriminatory.
Complainant has presented no arguments on appeal to warrant an extension
of the time limit for initiating EEO contact.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 26, 2001
__________________
Date