0120093701
02-19-2010
Kenneth L. Moore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Kenneth L. Moore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120093701
Agency No. 1F809000809
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated July 22, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race/color (black) when:
1. in July and August of 2006 and October 2007, he was required to take
his entire week of vacation off rather than only the few days of annual
leave he wanted and he did not receive work pay on the days he reported
to work but instead received vacation pay;
2. in approximately February 2009, he became aware that other employees
were allowed to work without a lunch break, whereas he was not allowed
to take his lunch break at the end of his tour; and
3. on March 12, 2009, he was placed on Emergency Placement-Off Duty
Status without Pay for failing to follow instructions.
The agency dismissed claim 1 for failure to timely initiate EEO
counseling. It reasoned that complainant initiated contact with an
EEO counselor on March 13, 2009, beyond the 45 calendar day time limit
to do so. The agency dismissed claim 2 for failure to state a claim.
It reasoned complainant was not harmed. The agency dismissed claim 3
for failure to state a claim. It reasoned that prior to the complaint
being filed, there was a grievance resolution which resolved the claim by
making a pay adjustment by paying complainant for the time he was out on
the emergency off-duty status. On appeal, complainant makes no comment.
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). Applying this regulation, we find that
complainant failed to timely initiate EEO counseling on claim 1.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Complainant has not explained how he
was aggrieved by the agency not allowing him to end his tour with his
lunch break.
The agency's dismissal of claim 3 is supported by Commission
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 via a grievance settlement, the suspension was
rescinded prior to the filing of the formal complaint); Cruz v. United
States Postal Service, EEOC Appeal No. 0120091496 (July 24, 2009)
(applying Stevenson where an emergency off duty status was rescinded
per a grievance settlement prior to the filing of the EEO complaint).
Accordingly, the FAD is affirmed.
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 (S0408)
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 (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
February 19, 2010
__________________
Date
2
0120093701
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093701