John D. Gonzales, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 6, 2000
01992689 (E.E.O.C. Jan. 6, 2000)

01992689

01-06-2000

John D. Gonzales, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


John D. Gonzales, ) Appeal Nos. 01992689,

Complainant, ) 01994161,

) 01994405,

v. ) 01995511

) Agency Nos. 1G784001398,

William J. Henderson, ) 1G784000599,

Postmaster General, ) 1G784000699,

United States Postal Service, ) 1G780019199

Agency. )

____________________________________)

DECISION

INTRODUCTION

Complainant filed four appeals with this Commission from four final

agency decisions (FADs) concerning his complaints of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. �2000e et seq. <1> The agency issued FAD

1 on January 28, FAD 2 on April 2, FAD 3 on April 5, and FAD 4 on May

27, 1999. These appeals were timely (see, 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified and hereinafter referred to as EEOC Regulation

29 C.F.R. � 1614.402(a)), and they are accepted in accordance with EEOC

Order No. 960, as amended.

ISSUES PRESENTED

The issues on appeal are whether the agency properly dismissed the

complaints for untimely EEO contact (FAD 1), failure to state a claim

(FAD 2), raising identical claims as those in prior EEO complaints and

untimely EEO contact (FAD 3), and failure to state a claim (FAD 4).

ANALYSIS AND FINDINGS

FAD 1

In EEOC Appeal No. 01992689 (Agency No. 1-G-784-0013-98), the complainant

alleged that an agency official made rude and untrue comments during

complainant's target check evaluation and that this evaluation was used

to propose a reduction in his grade. Also, the complainant alleged that

another agency official made a discriminatory racial comment to him

when she gave him the Proposed Reduction in Grade letter. The agency

dismissed the complaint for untimely EEO contact.

According to the regulations, a complainant must initiate contact with an

EEO counselor within 45 days of an alleged discriminatory event or the

effective date of the personnel action. 29 C.F.R. � 1614.105(a)(1).

An agency shall dismiss a complaint for failure to comply with the

applicable time limits in 29 C.F.R. � 1614.105. In this case, the

complainant initiated contact with the EEO counselor 57 days after

the July 9, 1998 target check. Therefore, EEO contact was untimely.

The agency properly dismissed this portion of the complaint.

Although the agency did not address the second portion of the complaint

regarding the racial comment and the Proposed Reduction in Grade, the

Commission will address them in this decision. An agency shall dismiss a

complaint that alleges a proposal to take personnel action. 29 C.F.R. �

1614.107(5). The complainant alleges that the Proposed Reduction in

Grade Letter was based on the inconsistencies from the July 9, 1998

inspection and was discriminatory. However, the letter was a proposal

to take personnel action, and the agency did not act on the proposal.

Also, the Commission has repeatedly found that a remark or comment

unaccompanied by concrete agency action is not usually a direct and

personal deprivation sufficient to render an individual aggrieved for

the purposes of Title VII. Backo v. U.S. Postal Service, EEOC Request

No. 05960227 (June 10, 1996); Henry v. U.S. Postal Service, EEOC Request

No. 05940625 (February 9, 1995). In this case, the agency official

allegedly handed the complainant the Proposed Reduction in Grade letter

and stated, �This is what your kind get[s].� Since the statement was only

accompanied by a proposed agency action, the complainant is not aggrieved.

Therefore, these claims are properly dismissed as well.

FAD 2

In EEOC Appeal No. 01994161 (Agency No. 1-G-784-0005-99), the complainant

alleged discrimination when the EEO office denied his request to change

the EEO counselor/ investigator. The agency dismissed the complaint

for failure to state a claim.

If a complainant is dissatisfied with the processing of his EEO complaint,

he must bring his allegations regarding the processing of this complaint

to the appropriate agency officials. Trujillo v. Department of the Air

Force, EEOC Request No. 05950177 (June 13, 1996); EEO Management Directive

110, p. 4-8 (October 22, 1992). Volume 64 Fed. Reg. 37,644, 37,656

(1999)(to be codified and hereinafter cited as 29 C.F.R. � 1614.107(8)),

provides that an agency shall dismiss an entire complaint that alleges

dissatisfaction with the processing of a previously filed complaint.

Accordingly, the agency properly dismissed this complaint.

FAD 3

In EEOC Appeal No. 01994405 (Agency No. 1-G-784-0006-99), the complainant

alleged that he was discriminated against when he was investigated

for falsifying leave forms. The investigation regarded whether the

complainant was at the Post Office on his sick day. The agency dismissed

the complaint for two reasons: raising identical claims in a prior EEO

complaint and making untimely EEO contact.

EEOC regulations provide that an aggrieved person must initiate contact

with a counselor within 45 days of the alleged discriminatory event.

29 C.F.R. � 1614.105(a)(1). This time limit shall be extended if the

complainant shows that he did not know about these time limits or for

other sufficient reasons. 29 C.F.R. � 1614.105(a)(2). In this case,

the complainant alleged that the discriminatory event occurred on October

28, 1998. On this date, an agency official informed him that he was being

investigated for falsifying leave forms for August 20, 1998 and that he

had to provide an affidavit about the incident. Over the next months,

the investigation continued. The complainant did not initiate EEO contact

about this matter until January 8, 1999. The complainant has not given

any reason why he waited to talk with the counselor. Since he did not

complain about the investigation until 77 days later, his EEO contact

was untimely. Therefore, the agency properly dismissed this complaint.

Since the Commission is affirming the agency's dismissal of the complaint

on the grounds of untimely EEO contact, we will not address the agency's

alternative grounds for dismissal, i.e., raising identical claims in a

prior EEO complaint.

FAD 4

Finally, in EEOC Appeal No. 01995511 (Agency No. 1-G-780-0191-99), the

complainant alleged that he was discriminated against when the employees

in the agency's injury compensation office acted as if they did not

want to help him. According to the complainant, the employees would

not answer his questions and did not offer any assistance. The agency

dismissed the complaint for failure to state a claim.

The complainant has failed to show that the employees' actions harmed

him. Since the complainant has failed to show a present harm or loss,

he is not an aggrieved employee and has failed to state a claim.

Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April

21, 1994). Accordingly, the agency properly dismissed this complaint

as well.

CONCLUSION

Accordingly, FAD 1, FAD 2, FAD 3, and FAD 4 are AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

01/06/00 ____________________________

DATE Carlton M. Hadden, Acting 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________ __________________________

DATE Equal Employment Assistant1On 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.