Chung Chen, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionAug 25, 2009
0120073657 (E.E.O.C. Aug. 25, 2009)

0120073657

08-25-2009

Chung Chen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.


Chung Chen,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Pacific Area),

Agency.

Appeal No. 0120073657

Hearing No. 480-2006-00362X

Agency No. 1F-904-0045-06

DECISION

On August 17, 2007, complainant filed an appeal with this Commission

when the agency failed to respond to his claim that it had not complied

with its April 12, 2007 final order. 29 C.F.R. � 1614.504(b).

ISSUE PRESENTED

Whether complainant raised his claim that the agency failed to comply

with its final order in a timely manner.

BACKGROUND

The record reveals that during the relevant time period, complainant was

employed by the agency as a part-time flexible Parcel Post Distribution

Clerk at the Los Angeles, California Bulk Mail Center. On May 6,

2005, complainant applied for the position of full-time clerk Training

Technician, level PS-6. The agency did not select complainant for

the position.

Complainant filed an EEO complaint in which he alleged that the agency

discriminated against him on the basis of national origin (Chinese) when

it failed to select him for a Training Technician position, in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq. After conducting a hearing on complainant's complaint,

the Administrative Judge (AJ) found that complainant was subjected to

national origin discrimination. Consequently, the AJ ordered the agency

to place complainant in a Training Technician position or comparably

graded full-time career PS-6 position; pay complainant the difference in

pay and benefits between his part-time flexible position and the Training

Technician position; and, post a notice of the finding of discrimination

at the Los Angeles Bulk Mail Facility. In a final order dated April 12,

2007, the agency fully implemented the AJ's decision.

On May 15, 2007, the agency offered complainant a Dock Clerk position,

PGS0-6, and gave him the option of working four different schedules.

On May 21, 2007, complainant accepted a Dock Clerk position with an

8:30 a.m. to 5:00 p.m. work schedule and Tuesdays and Wednesdays off.

However, complainant noted that "this is not [a] comparably graded

position" on the acceptance form. On June 5, 2007, complainant informed

the Manager of Distribution Operations that "after considering the facts,"

he would like to have a Training Technician position. On June 14, 2007,

the Senior Manager of Distribution Operations informed complainant that

it complied with its final order by offering and placing complainant in

a full-time level 6 Dock Clerk position. In a letter dated July 3,

2007, complainant informed a Plant Manager, Human Resources Manager,

Labor Relations Manager, union official, and the AJ that he believed that

the Dock Clerk position was not comparable to the Training Technician

position. In another letter to the AJ dated July 9, 2007, complainant

alleged that the agency failed to comply with its final order.

In a letter to the agency's EEO Director dated July 13, 2007, complainant

alleged that the agency failed to comply with its final order. On appeal

to the Commission, complainant maintains that the Dock Clerk position

into which the agency placed him is "not equivalent" to the Training

Technician position because unlike the Training Technician position,

the Dock Clerk position involves working in cold weather and rain,

pulling and straining on doors, and working on Saturdays and Sundays.

The agency argues that complainant's claim of non-compliance should be

dismissed as untimely because he did not notify the EEO Director of his

claim in a timely matter. The agency further argues that the Dock Clerk

position is comparable to the Training Technician position because the

Dock Clerk position features only minimal exposure to cold and rain in

Los Angeles' temperate climate. The agency also argues that the only

manual labor complainant did in the Dock Clerk position was lifting and

lowering dock and trailer doors, and complainant was given the option

of schedules, including one that featured Saturdays and Sundays off.

Additionally, the agency maintains that it posted a notice of the finding

of discrimination in the lobby of the Los Angeles Bulk Mail Facility

from April 26, 2007 until June 26, 2007.

ANALYSIS AND FINDINGS

Under 29 C.F.R. � 1614.504, if a complainant believes that the agency

has failed to comply with the terms of a final action, he shall notify

the EEO Director in writing of the alleged noncompliance within thirty

days of when he knew or should have known of the alleged noncompliance.

In this case, complainant was offered the Dock Clerk position on

or about May 15, 2007, and accepted the position on May 21, 2007.

Although complainant informed management that he wanted to be placed

into a Training Technician position on June 14, 2007, he did not properly

raise his non-compliance claim with the EEO Director until July 13, 2007,

more than 45 days after the agency offered and complainant accepted

the Dock Clerk position. Even complainant's initial notice to the AJ

of the agency's alleged non-compliance occurred after the 30-day time

limit. We note that the AJ's March 6, 2007 order entering judgment

apprized complainant that he must notify the agency's EEO Director in

writing of any alleged non-compliance with its final action within 30

days of the date complainant knew or should have known of the alleged

noncompliance, yet complainant did not notify the EEO Director of the

alleged non-compliance in a timely manner.

Finally, we also note that that complainant also claimed that the

agency failed to comply with its final order by posting a notice of

discrimination. The record contains a copy of a notice of discrimination

that the agency maintains was posted concerning complainant's case.

The notice states that the agency was found to have discriminated against

an employee based on his protected EEO activity when he was given an

undesirable work assignment and did not receive shift assignments.

The notice further states that the agency was ordered to calculate

back pay, expunge the employee's record, and provide EEO training to

responsible management officials. The notice also states that it was

posted on April 26, 2007 until June 26, 2007 pursuant to a Commission

order dated March 6, 2007. The Manager of Distribution Operations

submitted a statement attesting that the notice was posted in the lobby

of the Los Angeles Bulk Mail Facility from April 26, 2007 until June

26, 2007. Complainant ostensibly contends that the order is deficient

because it does not reflect that he was "awarded" a position because of

a finding of discrimination.

Upon review, we determine that complainant should have known of the

alleged non-compliant notice in its lobby on or about April 26, 2007.

However, complainant waited until July 13, 2007 to notify the EEO Director

of the alleged non-compliance, which is well beyond the 30-day time limit.

Complainant has not presented any argument that would warrant a waiver or

extension of the applicable time limits. Thus, we DISMISS complainant's

non-compliance claims on the basis that they were untimely raised to

the EEO Director.

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

___08/25/09_______________

Date

2

0120073657

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120073657