0120101056
06-29-2010
Darnell McCray, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Darnell McCray,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120101056
Agency No. 4H335017809
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated December 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.
BACKGROUND
During the relevant period, Complainant worked as a letter carrier at a
Tampa, Florida postal station. He filed a formal EEO complaint alleging
that he was subjected to discrimination on the basis of race (Black) when:
(1) on September 15, 2009, Complainant felt he was "being targeted in the
work place;" and (2) on July 1, 2009, he received a Letter of Warning
(LOW).1 Specifically, as to (1), Complainant alleged that management
monitored him and issued an LOW to him and other black employees. In
his formal complaint, Complainant stated that six other Blacks "have
received, or been threatened with or given a LOW." Complainant stated
this was done without a "proper investigation from the Agency."
In a decision dated December 21, 2009, the Agency dismissed claim (1)
of the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), which provides
that an agency shall dismiss a complaint that fails to state a claim.
Further, the Agency dismissed claim (2) of the complaint, pursuant
to 29 C.F.R. � 1614.107(a)(2), due to untimely EEO Counselor contact.
Complainant filed the instant appeal with this Commission.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that the Agency properly dismissed
claims (1) and (2) pursuant to 29 C.F.R. � 1614.107(a).
The regulation set forth at 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. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which there
is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Complainant alleged that he and other black employees
were targeted, in that they received or were threatened with LOWs without
proper investigations. Complainant also alleged that management watched
his actions. Without more, the Commission finds that the matter fails to
state a claim. Complainant fails to show how he was harmed, particularly
when he alleges others got LOWs without "proper investigations."
Further, pursuant to 29 C.F.R. � 1614.107(a)(2), an Agency shall dismiss
an entire complaint that fails to comply with the applicable time
limits contained in 1614.105. 29 C.F.R. 1614.105(a)(1) states that an
aggrieved person must initiate contact with a Counselor within 45 days of
the date of the matter alleged to be discriminatory. Here, the record
indicates that Complainant requested counseling on September 28, 2009,
which is 89 days after the July 1, 2009 LOW. While the record indicates
that Complainant grieved the LOW, the use of the negotiated grievance
procedure does not toll the time limit for contacting an EEO Counselor.
Schermerhorn v. United States Postal Service, EEOC Request No. 05940729
(February 10, 1995). Hence, for (2), we find that the Agency properly
dismissed the complaint for untimely EEO contact.
Based on the above, we find that the Agency properly dismissed both
claims. Accordingly, we AFFIRM the Agency's final decision dismissing
the instant complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
June 29, 2010
__________________
Date
1 The record indicates that, on July 1, 2009, Complainant received an
LOW and, on September 9, 2009, the Agency rescinded and expunged the
LOW from his personnel file.
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0120101056
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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