0120082944
07-16-2009
David K. Saul, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David K. Saul,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082944
Agency No. 1G-753-0060-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 9, 2008, dismissing his complaint of unlawful
employment discrimination. The complaint did not provide specific
incidents of discrimination, so the agency defined the complaint
by restating the incidents as found in the EEO Counselor's Report.
The agency defined the complaint as alleging that complainant was
subjected to discrimination on the bases of disability (lower extremity,
anxiety, and depression) and in reprisal for prior EEO activity when:
1. On March 10, 2008, complainant was harassed in that he was ordered to
bring certification for leaving work early; and when complainant explained
it was for a Family Medical Leave Act (FMLA) absence, the supervisor
refused to accept his response; and the next day, the supervisor
approached him twice within a 10-minute timeframe in a very aggressive
stance, and yelled at him and questioned him like a pre-schooler.
2. From October 2005 to present, there was constant harassment, and
complainant did not receive the same opportunities as his coworkers such
as in overtime.
The agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim. The agency dismissed claim 2 pursuant to
29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
Claim 1
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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission finds that the complaint fails to state a claim under
the EEOC regulations as a result of the incidents alleged in claim 1.
Nothing in the record indicates that complainant suffered any harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy. Complainant has failed to explain how these
incidents rendered him aggrieved. Complainant does not claim that he
was denied leave and does not ask for leave reimbursement as a remedy in
his complaint. Moreover, the Commission does not find that complainant's
claims (combining claims 1 and 2) are sufficiently severe so as to state
a claim of harassment.
Claim 2
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that the alleged discriminatory events in claim
2 began in October 2005. We concur with the agency and find that
complainant did not raise this particular claim of discrimination until
a formal complaint was filed on May 21, 2008, which is beyond 45-day
limitation period. In addition, complainant's initial EEO Counselor
Contact date of March 12, 2008 is also beyond the limitation period for
this claim. Complainant has not identified any specific incident that
occurred 45 days or less prior to his initial EEO Counselor contact.
Furthermore, we find that complainant should have reasonably suspected
discrimination more than 45 days prior to his initial EEO Counselor
contact. Complainant has presented no persuasive arguments or evidence
on appeal 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
July 16, 2009
__________________
Date
2
0120082944
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120082944
5 0120082944