01a42085
09-14-2004
Donald R. Weber, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donald R. Weber v. United States Postal Service
01A42085
September 14, 2004
.
Donald R. Weber,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42085
Agency No. 1A-111-0091-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 5, 2004, 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
On August 20, 2003, complainant contacted the EEO office claiming that
he was discriminated against on the bases of sex, age and in reprisal
for prior protected activity. Informal efforts to resolve complainant's
concerns were unsuccessful. On October 15, 2003, complainant filed the
instant formal complaint.
On January 5, 2004, the agency issued a final decision. The agency
determined that the instant complaint was comprised of the following
four claims:
(1) on January 7, 2001, complainant was threatened by a co-worker,
reported the matter to agency management, but no action was taken;
(2) in December 2002, complainant had a problem with a co-worker,
reported to management and no action was taken;
(3) in May (no day or year cited), complainant was denied overtime; and
(4) in August (no date or year cited), complainant was denied overtime.
In its final decision, the agency bifurcated its analysis into a
discussion of claims (1) and (2) together, and claims (3) and (4)
together.<1> The agency then determined that claims (1) and (2)
were untimely raised with an EEO Counselor pursuant to 29 C.F.R. �
1614.107(a)(2).
Regarding claims (3) and (4), the agency cited 29 C.F.R. � 1614.105(a)(1)
that an aggrieved person must contact an EEO Counselor within forty-five
days of the alleged discriminatory incident and 29 C.F.R. � 1614.106(c)
providing that a complaint must be "sufficiently precise" and describe
generally the action that forms the basis of the complaint. Specifically,
the agency stated that after a review of the record, it determined that
without providing specific incident dates that complainant failed to
meet the conditions stated in 29 C.F.R. � 1614.105(a)(1) and 29 C.F.R. �
1614.106(c).
Further, the agency also dismissed the instant complaint on the
alternative grounds of failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1). The agency determined that complainant failed to
articulate how he suffered a harm or loss with respect to a term,
condition, or privilege of employment.
On appeal, complainant contends that he was not provided a safe working
environment. Complainant further contends that his REDRESS hearings
"were used to cover these specific incidences and ongoing problems."
Furthermore, complainant contends that he is still being denied overtime
and that his case was never handled in accordance with the postal policy.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of a Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
Claims (1) and (2)
The record discloses that the alleged discriminatory events occurred
on January 7, 2001, and in December 2002, but that complainant did
not initiate contact with an EEO Counselor until August 20, 2003,
which is beyond the forty-five (45) day limitation period. On appeal,
complainant presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Therefore, we find that the agency properly dismissed claims (1) and
(2) for untimely Counselor contact.
Claim (3)
We find a fair reading of the EEO Counselor's Report and the Final
Interview reflects that complainant claimed that he was discriminated
against when in May 2003, while on vacation, he was denied overtime.
We note that in his formal complaint dated October 6, 2003, complainant
stated "this past May I was asked if I was able to come in on any days
the next week of my vacation because of a manpower shortage...Before
I left that Monday morning I asked if I was needed. I was told no."
We therefore determine that claim (3) concerning complainant being denied
overtime in May 2003, was more than forty-five days prior to complainant's
initial EEO Counselor contact of August 20, 2003. Complainant failed
to present adequate justification for extending the limitation period
beyond forty-five days. Accordingly, the agency's decision to dismiss
claim (3) for failure to initiate contact with an EEO Counselor in a
timely fashion was proper and is AFFIRMED.
Because we affirm the dismissal of claims (1) through (3) for the reason
stated herein, we find it unnecessary to address alternative dismissal
grounds.
Claim (4)
Regarding the dismissal of claim (4) for untimely EEO Counselor contact,
the Commission notes that in his formal complaint filed in October 2003,
complainant stated that �this past August, [a named agency employee] was
allowed to work two days off while on vacation.� Complainant's initial
EEO Counselor contact on August 20, 2003, was timely in regard to an
alleged overtime denial which purportedly occurred in that same month.
We therefore determine that claim (4) was improperly dismissed on the
grounds of untimely EEO Counselor contact.
Regarding the dismissal of claim (4) for failure to state a claim,
the Commission notes that the only proper questions in determining
whether a claim is within the purview of the EEO process are (1)
whether the complainant is an aggrieved employee and (2) whether he
has alleged employment discrimination covered by the EEO statutes.
An employee is �aggrieved� if he has suffered direct and personal
deprivation at the hands of the employer. See Hobson v. Department
of the Navy, EEOC Request No. 05891133 (March 2, 1990). In claim
(4), complainant claimed that he was denied overtime in August 2003.
Complainant's claim is sufficient to render him an aggrieved employee.
Because complainant alleged that the adverse action was based on sex,
age and in reprisal for prior protected activity, he raised a claim
within the purview of the EEOC regulations. Therefore, we find that
the agency improperly dismissed claim (4) for failure to state a claim.
Accordingly, the agency's dismissal of claims (1) through (3) is AFFIRMED.
The agency's dismissal of claim (4) was improper and is REVERSED.
Claim (4) is REMANDED to the agency for further processing in accordance
with this decision and the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim (claim (4)) in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claim within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 14, 2004
__________________
Date
1The Commission notes that in its final
decision, the agency inadvertently identified its discussion of claims
(3) and (4) under the caption: �Regarding allegations 2 and 3.� However,
the record reflects that the agency actually was addressing claims (3)
and (4) in this section of the final decision.