01a03000
08-16-2000
Thomas J. Wright, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Thomas J. Wright v. United States Postal Service
01A03000
August 16, 2000
.
Thomas J. Wright,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03000
Agency No. 4C-170-0001-00
DECISION
Based on a review of the record, we find that the agency properly
dismissed complainant's complaint, pursuant to 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.107 ).<1>
In a complaint dated November 23, 1999, complainant, a Letter Carrier,
PS-5, at the agency's Coudersport Post Office, in Coudersport,
Pennsylvania, alleged that he was subjected to discrimination on the
basis of retaliation (prior EEO activity) when:<2>
(1) on March 17, 1995, he filed a grievance;
(2) on an unspecified date, management attempted to obstruct complainant's
OES claim;
(3) on December 5, 1995, complainant was accused of implicating a
co-worker of mail tampering;
(4) on December 7, 1995, complainant was accused of implicating a
co-worker of mail tampering and conspiring to oust the Postmaster and
he was threatened with being fired;
(5) the agency attempted to obstruct complainant's November 17, 1997
Office of Workers Compensation Program (OWCP) claim for benefits by
denying his requests for a copy of a letter sent to Injury Compensation
in October 1997 and on November 15, 1997; on January 11, 1996 and
September 5, 1997, complainant was denied sick leave; on January 9,
1996 CA2 Accident Form; on November 28, 1995, doctor's office notes;
on October 31, 1995, letter to Injury Compensation; on October 26, 1995,
doctor allowed complainant one mile per day yet collections are not one
mile per day; on October 18, 1995, given limited duty with no clerical
duties; on October 16, 1995, denied meaningful work; on October 16,
1995, dismissed from work room until Harrisburg contacted;
(6) on August 2, 1998 and September 22, 1998, complainant was denied
leave;
(7) on September 23, 1998, the Postmaster denied knowledge of receiving
a grievance form;
(8) from March 9, 1998, unfair labor practices stopped by mail flow
stopped to case;<3>
(9) on unspecified date, management edited fictitious and duplicate
addresses;
(10) on March 9, 1998, management persuaded employees to merge box mail
with his route;
(11) a memo slip, dated May 19, 1994, was given to complainant by a
co-worker whose attempt to deal with the EEO process failed; and a memo
slip, dated December 4, 1996, was given to complainant by a co-worker
concerning his attendance; on November 28, 1997, an incident involving
a co-worker; and
(12) on October 2, 1999, a handout by management that states fraudulent
workmen compensation claim given to inspectors.
On February 7, 2000, the agency issued a final agency decision (FAD)
dismissing complainant's complaint for failure to state a claim
in accordance 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(1).
In the FAD, the agency found that although complainant claimed he
was discriminated based on retaliation (prior EEO activity) a review
of agency records disclosed no prior EEO activity. In light of this
fact, the instant complaint was dismissed. In the alternative, the FAD
dismissed issues (1), (3), (4), (5), (6), (7), (8), (10), and (11) for
untimely EEO counselor contact.<4> The FAD also dismissed issues (2),
(9), and (12) for failure to state a claim, noting that the complainant
failed to provide evidence that would suggest that he suffered from a
personal loss or harm with respect to a term, condition, or privilege
of employment as a result of the agency's actions in this case.
Protected Activity
The complainant countered the agency's finding that he failed to state a
claim because he has no record of prior EEO activity with the fact that
he essentially served as a co-worker's (co-worker) EEO representative
in a separate case (Agency No. 4C-170-1025-96) which the agency has not
refuted. Complainant asserts that his EEO representation of his co-worker
began after the co-worker complained to him about a learning disability.
Thereafter, the co-worker asked complainant to receive copies of any
official actions issued against him by the agency. The co-worker believed
that the Responsible Management Official (RMO) would treat him fairly
if he knew that the complainant would also be receiving documentation
bearing witness to the agency's actions against him. As evidence of
this �arrangement,� complainant submitted a memo slip issued by the RMO
addressed to the co-worker, dated December 4, 1996, involving an official
discussion and a proposed Letter of Warning for uncooperative behavior.
This memo was carbon copied (�cc:�) to the file and to complainant.
Complainant alleges that this memo was hand-delivered to him by the RMO
and validates his participation in prior EEO activity.
The Commission has stated that "[t]he anti-reprisal provision of Title
VII protects those who participate in the EEO process and also those who
oppose discriminatory employment practices. Participation occurs when an
employee has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding or hearing. . . . [A] variety
of activities has been found to constitute opposition. . . . Because
the enforcement of Title VII depends on the willingness of employees to
oppose unlawful employment practices or policies, courts have interpreted
section 704(a) of Title VII as intending to provide �exceptionally
broad protection to those who oppose such practices'. . . ." Whipple
v. Department of Veterans Affairs, EEOC Request No. 05910784 (February
21, 1992). Here, we find that complainant's involvement with his
co-worker's EEO case to be sufficient assistance within the EEO context
to constitute protected activity covered under Title VII and should not
have been dismissed for failure to state a claim based on retaliation.
Untimely EEO Counselor Contact
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.
Evidence of record indicates that complainant did not contact an EEO
counselor until September 17, 1999, which is well beyond the forty-five
(45) day limitation period with regard to issues (1), (3), (4), (5),
(6), (7), (8), (10), and (11). On appeal, complainant contends that he
was unaware of the time limits because the EEO posters were covered
up and that he was unaware of what retaliation was. However seeing
as complainant was helping a fellow employee with his EEO claim as far
back as December 1996, as well as the fact that complainant was pursuing
similar matters through the grievance process, we find complainant's
contention without merit and insufficient to justify an extension of the
applicable time limit for almost as long ago as five years. See Baldwin
County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam)
("One who fails to act diligently cannot invoke equitable principles to
excuse lack of diligence"); Rys v. U.S. Postal Service, 886 F.2d 443,
446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff
must have diligently pursued her claim").
Moreover, issues (1), (5), (7), and (8) involve grievance matters and
unfair labor practices which are not with the purview of EEOC regulations.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 24, 1993). It is inappropriate to now
attempt to use the EEO process to collaterally attack actions which
occurred during the grievance process.
Failure to State a Claim
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 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. The Commission finds that issues (2), (9), and (12)
fail to state a claim because the allegations, even if proven to be true,
would not indicate that complainant has been subjected to harassment
that was sufficiently severe or pervasive to alter the conditions of
his employment. Moreover, the complaint does not otherwise challenge an
unlawful employment policy or practice. See Cobb v. Department of the
Treasury, Request No. 05970077 (March 13, 1997). The Commission also
finds that complainant fails to state a claim of reprisal with regard
to these issues. Under present Commission policy, claimed retaliatory
actions which can be challenged are not restricted to those that
affect a term or condition of employment; a complainant is protected
from any discrimination which is reasonably likely to deter protected
activity. See EEO Compliance Manual Section 8, �Retaliation;� No. 913.003
(May 20, 1998), p. 8-15. Upon review, we find no evidence that alleged
incidents in issues (2), (9), and (12) would have reasonably deterred
protected activity. Accordingly, the agency's final decision dismissing
complainant's complaint is 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 16, 2000
__________________
Date
1On 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.
2We note that the listed allegations were addressed by the agency verbatim
as they were formulated and submitted by the complainant in conjunction
with his formal complaint of discrimination.
3 This allegation is stated verbatim from both the complainant's formal
complaint and the FAD.
4 The agency also dismissed the noted issues under the continuing
violation theory. The agency noted that complainant filed grievances
on issue (1) on March 17, 1995, and issue (7) on September 23, 1998.
The agency's position was that the complainant was alerted to protect
his rights and elected to file grievances with regard to both of these
allegations. The agency asserted that the filing of these grievances
was of such permanence or finality that they triggered the complainant's
duty to assert his rights.