01985122
08-09-2000
Glenn M. Aaron, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Glenn M. Aaron, )
Complainant, )
)
v. ) Appeal No. 01985122
) Agency No. 1D-281-0018-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's May 27, 1998 decision dismissing
the complaint on the grounds of untimely EEO Counselor contact and
failure to state a claim is proper pursuant to the provisions of 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.107(a)(1) and (2)).<1>
The record shows that Complainant sought EEO counseling on January 20,
1998, claiming that he had been discriminated against on the bases of
race, mental disability, and reprisal when:
(1) on, before, and after January 20, 1998, he was stalked by his
supervisor, who allegedly had promised to �get him� (Complainant);
(2) on November 26, 1997, he was issued a decision by EEO Compliance
and Appeals which was due to incorrect data submitted by the Senior EEO
Complaints Processing;
(3) in July 1997, the agency breached a settlement agreement by giving
him a 14-day suspension; and
(4) on November 26, 1997, the agency failed to place a poster on the
workroom floor which deals with the rights of disabled veterans.
Subsequently, Complainant filed a formal complaint on the matters
for which Complainant underwent EEO counseling, discussed above.
The agency issued a final decision dismissing all the claims raised in the
complaint on the grounds of untimely EEO Counselor contact and noted that
Complainant, as an employee who �has filed several previous EEO complaints
... was well aware of the time limits for requesting counseling.� All
the claims raised in the complaint were also dismissed on the grounds that
Complainant had filed a civil action in U.S. District Court. Claims (2),
(3), and (4) were dismissed on the alternative grounds of failure to
state a claim.
The record shows that even though Complainant sought EEO counseling
on January 20, 1998, in claims (2), (3), and (4), he raised incidents
which he alleged occurred between July 1997 and November 26, 1997.
Accordingly, Complainant's initial EEO Counselor contact concerning
these incidents occurred well beyond the 45-day time limit provided
by EEOC Regulations even though he was aware of this time limitation.
Moreover, to the extent that the matter addressed in claim (3) addresses
a purported breach of a settlement agreement, the Commission notes that
EEOC Regulations provide that if a complainant believes that the agency
has failed to comply with the terms of a settlement agreement or decision,
the complainant shall notify the EEO director, in writing, of the alleged
noncompliance within 30 days of when the complainant knew or should have
known of the alleged noncompliance. See 64 Fed. Reg. 37,644, 37,660
(1999) (to be codified and hereinafter referred to as EEOC Regulation
29 C.F.R. � 1614.504(a)).
In claim (3), Complainant stated that the agency had breached a settlement
agreement by giving him a 14-day suspension in July 1997. Clearly,
his claim was raised well beyond the 30-day time limit provided by EEOC
Regulations for a breach of settlement claim.
Based on the foregoing, we find that the agency properly dismissed claims
(2), (3), and (4) on the grounds of untimely EEO Counselor contact.<2>
The record shows that claim (1) was dismissed on the grounds of untimely
EEO Counselor contact and on the grounds that Complainant had filed a
civil action. Upon our review of the record, however, we determine that
this claim is properly analyzed in terms of whether it states a claim. A
review of claim (1) reflects that it fails to show that Complainant
has suffered a harm to the terms, conditions, or privileges of his
employment. Moreover, the claim that the supervisor in question had
allegedly promised to �get� Complainant is not sufficient to state a claim
under our regulations. The Commission has held that a remark or comment
unaccompanied by any concrete effect does not render the complainant
aggrieved. Fuller v. USPS, EEOC Request No. 05910324 (May 2, 1991).
Finally, a review of the dismissed claim persuades the Commission that,
when treated as true, it is not sufficient to state a claim, either of
disparate treatment or a hostile or abusive work environment. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). The final agency decision dismissing claims (1) - (4) is hereby
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (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:
August 9, 2000
DATE
Carlton
M.
Hadden,
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________ _________________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 Pursuant to our decision we will not address the alternate grounds
for dismissal of claims (2), (3), and (4).