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.