Charles R. Hunt, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionDec 18, 2009
0120092522 (E.E.O.C. Dec. 18, 2009)

0120092522

12-18-2009

Charles R. Hunt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Charles R. Hunt,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 0120092522

Agency No. 1H302002409

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated April 21, 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. Upon review, the Commission finds that complainant's complaint was

properly dismissed. For the following reasons, the Commission AFFIRMS

the agency's final decision.

ISSUE PRESENTED

Whether the agency properly dismissed complainant's complaint on the

grounds that he failed to seek EEO counseling on the issues set forth

in his complaint.

BACKGROUND

The record shows that at the time of the alleged discriminatory actions,

complainant was employed as a Building Equipment Mechanic at the agency's

Duluth, Georgia, North Metro facility. Complainant's contentions arise

from the alleged conduct of management. On February 6, 2009, in his

interview with an EEO counselor, complainant alleged that the agency

discriminated against him when: (i) on December 5, 2008, management

deleted his clock rings and charged him 5.5 hours LWOP (union); and

(ii) on December 25, 2008, he was not paid premium pay for working on

Christmas Day. After being a notice of final interview, complainant filed

a formal complaint, dated April 21, 2009. Notwithstanding the issues

that complainant sought counseling on, his complaint alleged that the

agency discriminated against him in retaliation for prior protected EEO

activity when: (1) management subjected him to "special work standards;"

and (2) management subjected him to "increased surveillance."

In its final decision, the agency dismissed claims (1) and (2) on the

grounds that complainant had not previously brought these matters to

the attention of a counselor and that they were not "like or related"

to the matters complainant brought before the counselor. Moreover,

the agency found that claims (1) and (2) fail to state a claim of

discrimination pursuant to 29 C.F.R. �1614.107(a).

CONTENTIONS ON APPEAL

In his appeal brief, as presented by his representative, complainant

contends that the agency improperly dismissed his claim of discrimination.

Complainant contends that he has presented adequate facts to support

a prima facie claim of discrimination in retaliation for prior EEO

activity. Complainant also contends that he was subjected to increased

management surveillance. Finally, though not previously raised in his

formal complaint, complainant contends that, during mediation, the EEO

Counselor/ADR Specialist failed to act as a neutral party, and instead,

acted as an advocate for the agency. On these bases, complainant requests

that his appeal be granted and the complaint be remanded to the agency

for an investigation.

The agency asks that we affirm its dismissal of complainant's complaint.

ANALYSIS AND FINDINGS

Initially, we note that, pursuant to EEOC Management Directive for 29

C.F.R. � 1614, 3-8 (November 9, 1999), nothing said or done in attempts

to resolve a complaint through ADR can be made the subject of an EEO

complaint. Accordingly, complainant's assertions regarding the EEO

Counselor/ADR Specialist will not be addressed.

The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in

pertinent part, that an agency shall dismiss a complaint which raises a

matter that has not been brought to the attention of an EEO Counselor,

and is not like or related to a matter on which the complainant has

received counseling. A later claim or complaint is "like or related"

to the original complaint, if the later claim or complaint adds to or

clarifies the original complaint and could have reasonably been expected

to grow out of the original complaint during the investigation. See

Scher v. United States Postal Service, EEOC Request No. 05940702 (May 30,

1995); Calhoun v. United States Postal Service, EEOC Request No. 05891068

(March 8, 1990).

Claims (1) and (2)

Applying the foregoing standard to the facts presented in the instant

case, we note that complainant failed to bring claims (1) and (2) to the

attention of an EEO Counselor. The respective claims were raised for

the first time in complainant's formal complaint. Based on a thorough

review of the record, we find that the claims are not like or related

to the matters that were brought to the attention of the EEO Counselor,

i.e., they do not add to or clarify the original matters complainant

sought counseling on nor would they have been expected to have grown out

of an investigation of those matters, which concerned specific time and

pay issues arising on December 5 and 25, 2008.

CONCLUSION

After a careful review of the record and contentions on appeal,

including those not specifically addressed herein, we find that the

agency's dismissal of the complaint was proper and hereby AFFIRM the

final agency decision.

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

_______12/18/09___________

Date

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0120092522

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092522