0120091478
07-16-2009
Galip Yurtsever, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Galip Yurtsever,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091478
Agency No. 4K230018908
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated January 2, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. In his complaint, complainant alleged
that he was subjected to discrimination based on his race/national origin
(Turkish/Turkey), disability (disabled veteran, total knee replacement),1
and reprisal for prior protected EEO activity when:
1. he was issued a letter of warning dated May 21, 2008;
2. on unspecified dates he was denied his entitlement to night
differential; and was denied straight time on days he worked beyond his
normal workday;2 and
3. on unspecified dates he was denied compensation when using his
private vehicle.
Following an investigation of the above claims, the agency issued
a FAD dismissing the complaint. It reasoned that claim 1 failed to
state a claim because the letter of warning was expunged/rescinded
per management instruction in July 2008. When the agency initially
accepted the complaint, it defined claims 2 and 3 as having occurred
on unspecified dates. Based on complainant's subsequent investigative
affidavit, the FAD redefined claim 2 as occurring on August 20, 2007,
and claim 3 as occurring on November 26, 2007.3 Complainant initiated
contact with an EEO counselor on June 5, 2008, but the counselor's
report indicates he did not raise claims 2 and 3. He raised them in
his September 12, 2008, EEO complaint, which the FAD deemed as being
the date of EEO contact on those claims. The FAD dismissed claims 2
and 3 for failure to timely initiate EEO counseling. It reasoned that
complainant initiated EEO contact on September 12, 2008, beyond the 45
calendar day time limit to do so.
On appeal complainant states that the letter of warning was not expunged
or rescinded to his knowledge, and that the mediation of July 16, 2008,
was unresolved. Complainant argues that he was continuously denied
night differential and wages for days he worked beyond his normal
workday until October 6, 2008, and was denied compensation when using
his private vehicle until January 2009. In opposition to the appeal,
the agency argues that the FAD should be affirmed.
Turning to claim 1, the record contains an email by complainant's
supervisor that the letter of warning was removed from complainant's file
in July 2008, and a later affidavit by the supervisor confirming it was
not in complainant's official personnel file. Complainant does not
rebut this, rather, he contends that he has no knowledge of it. Given
his supervisor's representation, we find the letter of warning was
rescinded in July 2008, prior to complainant filing his EEO complaint.
The FAD's dismissal of claim 1 is supported by Commission case precedent.
See Stevenson v. United States Postal Service, EEOC Appeal No. 01A52057
(April 27, 2005) (affirmed dismissal for failure to state a claim of
a complaint alleging discriminatory seven day suspension where the
suspension was rescinded prior to the filing of the formal complaint).
We disagree with the FAD's finding that complainant waited until September
12, 2008, to initiate EEO contact on claim 2. He raised claim 2 in
the EEO counseling intake form (known as Information for Pre-Complaint
Counseling), albeit not in portion of the form where he was solicited to
do so. Accordingly, we find he initiated EEO counseling on claim 2 on
June 5, 2008, the date he first initiated EEO contact. We also disagree
with the finding in the FAD that claim 2 occurred on August 20, 2007.
Complainant alleged in the intake form that he was seeking back pay for
claim 2 starting August 20, 2007. He later elaborated that his hours were
changed from 9:30 AM to 6:30 PM to 9:00 AM to 6:00 PM, but the last mail
was dispatched at 6:50 PM, resulting in him having to work additional time
but being denied night differential and straight time for working an extra
50 minutes each night. See eg., Affidavit A, response to question 39.
Complainant indicated this was ongoing. See eg., Affidavit A, response to
question 68. He writes on appeal this continued until October 6, 2008.
An aggrieved person must seek EEO counseling within 45 days of
the date of the alleged discriminatory action, or in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. � 1614.105(a)(1) & .107(a)(2). Complainant timely contacted
an EEO counselor on claim 2 as he was allegedly still being denied wages
for hours he worked when he contacted an EEO counselor. The actionable
dates of this claim run from April 21, 2008 (45 days before the June 5,
2008, EEO contact) to October 6, 2008.
We agree with the finding in the FAD that complainant did not contact
an EEO counselor regarding claim 3 until September 12, 2008. While
complainant writes on appeal that he was denied compensation for his
personal vehicle until January 2009, he wrote in his affidavit that
he requested reimbursement on November 26, 2007, and he submitted no
documentation of requests for reimbursement made or denied within 45
calendar days prior to his September 12, 2008, EEO contact. Accordingly,
the FAD's dismissal of claim 3 is affirmed.
The FAD's dismissal of claims 1 and 3 is affirmed, and its dismissal of
claim 2, as defined in the order below, is reversed.
ORDER
The remanded claim is whether complainant was discriminated against on his
race/national origin (Turkish/Turkey), disability (disabled veteran, total
knee replacement), and reprisal for prior protected EEO activity when
on from April 21, 2008 to October 6, 2008, he was denied his entitlement
to night differential, and during the same period he was denied straight
time on days he worked beyond his normal workday. The agency is directed
to process the remanded claim in accordance with 29 C.F.R. � 1614.108(f)
et seq. Specifically, it shall provide complainant with a copy of the
investigative file and give him a notice that explains that within 30
calendar days of his receipt of the investigative file and notice, he
has a right to request a hearing and decision from an administrative
judge or may request an immediate final decision pursuant to 29 C.F.R.
� 1614.110 from the agency. The agency shall complete this action
within thirty (30) calendar days after this decision becomes final.
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 notice of rights, referenced above, must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (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 (T0408)
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 (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
1 Complainant clarified the identification of his alleged disability
after filing his complaint.
2 Complainant clarified after filing his complaint that he was referring
to extra straight time, not overtime.
3 In response to the investigator's question of when he requested payment
for night differential and additional straight time, complainant answered
August 20, 2007, and in response to the investigator's question of when
he requested reimbursement for use of his personal vehicle for postal
business, complainant answered November 26, 2007.
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0120091478
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091478