0120121356
07-10-2012
Kevin L. Cox, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Kevin L. Cox,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120121356
Agency No. 4B070025411
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 6, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postmaster, EAS-21 at the Agency's facility in Teaneck, New Jersey. On December 12, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), color (Black), and reprisal for prior protected EEO activity when:
1. On or about June 17, 2011, the District Manager denied his request to the E-Access application and instructed Complainant to contact his manager for approval;
2. On September 23, 2011, the District Manager's secretary called and questioned Complainant in an assertive and direct tone regarding a customer complaint about the air conditioning at his facility; and
3. On September 23, 2011, the Acting Postal Operations Manager informed Complainant that she had to give him a Pre-Disciplinary Interview and Investigative Interview in the next week. Complainant alleges that during the conversation, the Postal Operations Manager was rude and unprofessional.
In its final decision, the Agency dismissed the instant complaint pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1) on the grounds that it failed to state a claim. Specifically, the Agency determined that Complainant failed to establish that he suffered harm with respect to the terms and conditions of his employment. In reaching this conclusion, the Agency noted that Complainant received no discipline or other adverse action as a result of the Agency's Pre-Disciplinary Interview and Investigative Interview. Moreover, the Agency determined that the incidents as alleged in the instant complaint fail to rise to the level of harassment and are not severe and or pervasive so as to alter the conditions of Complainant's employment.
In a brief statement on appeal, Complainant indicates that he has been the victim of reprisal. Specifically, Complainant alleges that in reprisal, he "has received discipline towards this action." Complainant provides the Commission with a copy of a Proposed Letter of Warning in Lieu of a 14-Day Time Off Suspension.
ANALYSIS AND FINDINGS
Claim 1
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 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 further 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 record indicates that the Agency dismissed claim 1 in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Upon review, the Commission finds that claim 1 is more appropriately dismissed as untimely on the grounds that Complainant failed to contact an EEO Counselor in a timely manner. Specifically, the record indicates that Complainant was advised on June 17, 2011, that his request for access to the e-Access application was denied because he needed to process the request through another Agency official. However, Complainant did not seek counseling regarding his concerns until September 23, 2011, which is beyond the applicable time frame for timely seeking counseling.
Claims 2 & 3
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. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Commission finds that with respect to claims 2 and 3, Complainant has failed to state a claim. Specifically, we note that the record does not indicate that Complainant suffered any adverse action or was otherwise harmed as a result of the Agency's conduct in claims 2 and 3. Complaint fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Regarding Complainant's statement on appeal indicating that he has received discipline, the Commission notes that EEOC Regulation 29 C.F.R. 1614.107(e), states that an agency may reject a complaint in which appellant alleges that a proposed action is discriminatory. Here, on appeal, the Complainant alleges that he was harmed when he was issued a Proposed Letter of Warning. The record does not indicate that a Letter of Warning was issued to Complainant as alleged. Therefore, the threat to Complainant was actually a proposed action. As a proposed action, we find that Complainant has failed to demonstrate on appeal that the proposed action has created a direct and personal deprivation which would render Complainant aggrieved within the meaning of the regulations. See Lewis v. Department of the Interior, EEOC Request No. 05900095 (February 6, 1990).
CONCLUSION
For the foregoing reasons, the Agency's decision dismissing the instant compliant is affirmed.
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 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), 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. 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 (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
July 10, 2012
__________________
Date
2
0120121356
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121356