01992978
03-29-2000
Lawrence L. Ellis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lawrence L. Ellis, )
Complainant, )
)
v. ) Appeal No. 01992978
) Agency No. 1-G-772-0091-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's January 13, 1999 decision
dismissing the complaint on the grounds of untimely EEO counselor contact
and failure to state a claim is proper pursuant to the provisions of 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.107(a)(1) and (2)).<1>
The record shows that Complainant sought EEO counseling on July 21, 1998,
claiming that he had been discriminated against on the bases of race,
and sex when: (1) on May 28, 1998, he was attacked by another employee
and said employee was not forced to go to the Employee Assistance Program
(EAP); (2) on June 3, 1998, a supervisor badgered Complainant as to why
he did not stay at the facility and fill out an accident report and
wait for medical treatment; and, (3) on June 8, 1998, Safety Review
Board findings did not contain or pertain facts or statements from
him concerning an accident. Subsequently, Complainant filed a formal
complaint concerning these claims.
The agency issued a final decision dismissing claims (1) and (2) on the
basis of untimely EEO counselor after finding that Complainant had failed
to seek EEO counseling within the 45-day time limitation. Claim (3) was
dismissed on the grounds of failure to state a claim after the agency
found that Complainant had failed to show that he had suffered a harm
to the terms, conditions, or privileges of his employment.
The Commission applies a "reasonable suspicion" standard to the
triggering date for determining the timeliness of the contact with an
EEO counselor. Cochran v. United States Postal Service, EEOC Request
No. 05920399 (June 18, 1992). Under this standard, the time period
for contacting an EEO counselor is triggered when the complainant should
reasonably suspect discrimination, but before all the facts that would
support a charge of discrimination may have become apparent. Id.;
Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).
Based on the record, we find that Complainant suspected or should have
suspected discrimination on May 28, 1998, when he was attacked by a
coworker and the coworker was not sent to EAP, and on June 3, 1998,
when he was badgered about an accident report. Accordingly, he should
have sought EEO counseling within 45 days of those incidents, but failed
to do so. Therefore, claims (1) and (2) were properly dismissed on the
basis of untimely EEO counselor contact.
An agency shall accept a complaint from any aggrieved employee or
applicant 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. 64 Fed. Reg. 37,644, 37656 (1999) (to be codified
and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.103;
�1614.106(a)). The Commission has held that while the regulations do
not define the term "aggrieved employee," the United States Supreme
Court has interpreted it to mean an employee 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 (Apr. 21, 1994). "To state a claim under
our regulations, an employee must allege and show an injury in fact."
Id. (citing Hackett v. McGuire Bros., 445 F.2d 447 (3d Cir. 1971)).
"Specifically, an employee must allege and show a `direct, personal
deprivation at the hands of the employer,' that is, a present and
unresolved harm or loss affecting a term, condition or privilege of
his/her employment." Id. (citing Hammonds v. United States Postal Serv.,
EEOC Request No. 05900863 (Oct. 31, 1990); Taylor v. United States Postal
Serv., EEOC Request No. 05900367 (June 2, 1990)).
A review of claim (3) persuades the Commission that Complainant has failed
to show that he suffered a personal harm and was aggrieved; therefore,
he has failed to state a claim.
Accordingly, the final agency decision was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
March 29, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________ _________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.