0120092483
10-22-2009
Bernard Sawyer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092483
Agency No. 4F900034808
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 14, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African American), sex (male),
color (Black), and age (55 and 56 years old at time of incidents) when:
1. On or around June 11, 2008, complainant was falsely accused of sexual
harassment; and
2. Management failed to complete an adjustment of complainant's route
by March 26, 2008.
The agency dismissed claim 1 for failure to state a claim, and claim
2 for untimely EEO counselor contact. As regards claim 1, the agency
found complainant failed to show he was aggrieved and further found
that the alleged action was not so severe as to constitute harassment.
As regards claim 2, the agency found that complainant did not contact an
EEO counselor until July 7, 2008 which is beyond the 45-day regulatory
limit. On appeal, complainant maintains that the agency falsely accused
him of harassment in order to discredit the union because complainant
is an assistant steward. Complainant further states that, as regards
claim 2, he became aware of the discrimination on May 12, 2008 and that
his EEO counselor contact is therefore timely.
The Commission finds that, as regards claim 1, the complaint fails to
state a claim under the EEOC regulations because complainant failed to
allege 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. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994). Moreover, he has not alleged a viable claim of harassment that
had the purpose or effect of unreasonably interfering with his work
performance and/or creating an intimidating, hostile, or offensive
work environment. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,
682 F.2d 897 (11th Cir. 1982).
As regards claim 2, complainant has not explained what happened on May 12,
2008 that caused him to become aware that the agency's action of March 26,
2008 was discriminatory. Complainant has included a copy of a Step "C"
Decision dated May 12, 2008 showing that complainant filed a grievance
regarding a route adjustment. We note that the fact that complainant
received an unfavorable grievance decision does not constitute evidence
that management's actions were discriminatory, nor does filing a grievance
toll the time limits for contacting an EEO counselor. Complainant has
presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact.
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
October 22, 2009
__________________
Date
2
0120092483
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092483