0120092023
08-06-2009
Pedro A. Martinez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Pedro A. Martinez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092023
Agency No. 4A070004309
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 1, 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.
In a complaint dated March 25, 2009, complainant alleged that he was
subjected to discrimination on the basis of national origin (Hispanic)
when:
1. Since October 2006, he has not worked his bid assignment, and
2. On unspecified dates, complainant has been subjected to unspecified
discrimination.
The record further indicates that complainant alleges that since he was
selected for the position of Supervisor, Customer Service at the agency's
facility in North Bergen, NJ in 2006, he has never been permitted to
work in that position. The agency determined that complainant failed
to state a claim finding that working outside of his bid assignment
did not render him an aggrieved employee with respect to the terms,
conditions or privileges of his employment. The Commission finds,
however, that complainant has stated a justicible claim of employment
discrimination with regard to claim (1).
Upon review, however, the Commission finds that the matter is more
properly dismissed as untimely in accordance with EEOC Regulation 29
C.F.R. � 1614.107(a)(2). Specifically, the Commission further finds
that complainant failed to timely contact an EEO counselor regarding
his claim that since 2006, the agency has failed to permit him to work
his bid assignment. In complainant's statement on appeal, he indicates
that despite his "constant protests," the agency has never permitted
him to work in the supervisor position for which he successfully bid in
February 2006. Complainant also indicates that in December 2007, the
agency reassigned him to a satellite office with reduced supervisory
authority. Finally, complainant indicates on appeal that he did not
contact an EEO Counselor until December 2008 because he "repeatedly asked
the postmaster verbally and via email to assign [him] to the bid that
[he] had won in 2006. Complainant further alleges that "when it became
apparent" that he would not be assigned to the bid, he initiated the
instant complaint.
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.
Complainant has not alleged that he was unaware of the relevant time
limitations for seeking EEO counseling nor has he alleged that he was
prevented for any reason from seeking timely EEO contact. The Commission
finds, therefore, that claim 1 is properly dismissed as untimely.
With respect to claim 2; complainant's claim that he was subjected to
unspecified acts of discrimination, we find that complainant has failed
to demonstrate that he was subjected to any adverse action or that
that he was subjected to harassment which was so severe and pervasive
that it altered the conditions of his employment. In that regard,
the Commission finds that claim 2 is properly dismissed in accordance
with EEOC Regulation 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim.
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
August 6, 2009
__________________
Date
2
0120092023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092023