01a60439
04-27-2006
Malik Brevard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Malik Brevard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60439
Agency No. 1A-066-0021-05
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. �� 1614.107(a)(1) and (2).
On August 22, 2005, complainant filed a complaint alleging that he was
discriminated against on the bases of race (Black) and religion (Islam)
when:
(1) On or about April 24, 2005, his supervisor created an extremely
uncomfortable work environment by: (a) excessively monitoring his work;
(b) confronting him; (c) stating that the mail did not make its dispatch
time; (d) stating that the number volume was low; (e) stating that he was
going to deal with him; (f) stating that he did not want the feed belt
with mail; and (g) fabricating a statement that complainant threatened
him, resulting in complainant being put out of the building and losing
ninety units of pay.
(2) On or about July 8, 2005, his supervisor threatened him by stating
that he would put complainant back in the streets where he belonged.
The agency dismissed claim (1) on the grounds that complainant sought
EEO counseling in an untimely manner. Claim (2) was dismissed on the
grounds that it failed to state a claim. This appeal followed.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,
that the agency shall dismiss a complaint or a portion of a complaint that
fails to comply with the applicable time limits contained in � 1614.105.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent. After a careful review of the record, we affirm the
agency's dismissal of claim (1) on the grounds of untimely counselor
contact. The record indicates that the complainant sought EEO counseling
on July 12, 2005. Complainant did not provide an explanation regarding
his untimely counselor contact.
With regard to claim (2), we find that, even if one assumes that the
supervisor's statement was a threat to either terminate complainant's
employment or to somehow cause him to be transferred to the carrier craft,
there is no dispute that complainant was never subjected to a personnel
action as a result of the statement. The Commission finds that claim (2)
fails to state a claim under the EEOC regulations because complainant
failed to show that he suffered a harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Remarks or comments, unaccompanied by any concrete agency
action, are not usually sufficient to render an employee "aggrieved" for
purposes of stating a valid employment discrimination claim. See Backo
v.United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); 29 C.F.R. � 1614.107(a)(1). Accordingly, the agency's decision
dismissing claim (2) is also affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___04-27-06_______________
Date
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01A60439
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A60439