Lawrence L. Ellis, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 29, 2000
01992978 (E.E.O.C. Mar. 29, 2000)

01992978

03-29-2000

Lawrence L. Ellis, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Lawrence L. Ellis, )

Complainant, )

)

v. ) Appeal No. 01992978

) Agency No. 1-G-772-0091-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's January 13, 1999 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 July 21, 1998,

claiming that he had been discriminated against on the bases of race,

and sex when: (1) on May 28, 1998, he was attacked by another employee

and said employee was not forced to go to the Employee Assistance Program

(EAP); (2) on June 3, 1998, a supervisor badgered Complainant as to why

he did not stay at the facility and fill out an accident report and

wait for medical treatment; and, (3) on June 8, 1998, Safety Review

Board findings did not contain or pertain facts or statements from

him concerning an accident. Subsequently, Complainant filed a formal

complaint concerning these claims.

The agency issued a final decision dismissing claims (1) and (2) on the

basis of untimely EEO counselor after finding that Complainant had failed

to seek EEO counseling within the 45-day time limitation. Claim (3) was

dismissed on the grounds of failure to state a claim after the agency

found that Complainant had failed to show that he had suffered a harm

to the terms, conditions, or privileges of his employment.

The Commission applies a "reasonable suspicion" standard to the

triggering date for determining the timeliness of the contact with an

EEO counselor. Cochran v. United States Postal Service, EEOC Request

No. 05920399 (June 18, 1992). Under this standard, the time period

for contacting an EEO counselor is triggered when the complainant should

reasonably suspect discrimination, but before all the facts that would

support a charge of discrimination may have become apparent. Id.;

Paredes v. Nagle, 27 FEP Cases 1345 (D.D.C. 1982).

Based on the record, we find that Complainant suspected or should have

suspected discrimination on May 28, 1998, when he was attacked by a

coworker and the coworker was not sent to EAP, and on June 3, 1998,

when he was badgered about an accident report. Accordingly, he should

have sought EEO counseling within 45 days of those incidents, but failed

to do so. Therefore, claims (1) and (2) were properly dismissed on the

basis of untimely EEO counselor contact.

An agency shall accept a complaint from any aggrieved employee or

applicant 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. 64 Fed. Reg. 37,644, 37656 (1999) (to be codified

and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.103;

�1614.106(a)). The Commission has held that while the regulations do

not define the term "aggrieved employee," the United States Supreme

Court has interpreted it to mean an employee 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 (Apr. 21, 1994). "To state a claim under

our regulations, an employee must allege and show an injury in fact."

Id. (citing Hackett v. McGuire Bros., 445 F.2d 447 (3d Cir. 1971)).

"Specifically, an employee must allege and show a `direct, personal

deprivation at the hands of the employer,' that is, a present and

unresolved harm or loss affecting a term, condition or privilege of

his/her employment." Id. (citing Hammonds v. United States Postal Serv.,

EEOC Request No. 05900863 (Oct. 31, 1990); Taylor v. United States Postal

Serv., EEOC Request No. 05900367 (June 2, 1990)).

A review of claim (3) persuades the Commission that Complainant has failed

to show that he suffered a personal harm and was aggrieved; therefore,

he has failed to state a claim.

Accordingly, the final agency decision was proper and 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).

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:

March 29, 2000

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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

___________ _________________________________

DATE EQUAL EMPLOYMENT ASSISTANT

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.