Darnell McCray, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionJun 29, 2010
0120101056 (E.E.O.C. Jun. 29, 2010)

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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