0120161028
04-19-2016
Marlin K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marlin K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120161028
Agency No. 4C250005015
DECISION
Complainant filed a timely appeal with this Commission from the Agency's January 15, 2016 dismissal of 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.
BACKGROUND
The events giving rise to this complaint arose during and shortly after Complainant's time working as a Postal Support Employee ("PSE") Mail Processing Clerk (P-06/A) at the Agency's Clarksburg, West Virginia Post Office.
On December 21, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American) when:
1. On May 23, 2015, he became aware that his car bumper had been hit in the employee parking lot and management did not properly investigate it;
2. In August 2015, and other unspecified occasions, the Postmaster ("PM") told him he was working too slowly and threatened to fire him; and
3. On or around August 19, 2015, after Complainant resigned from his position at the Agency, he learned that PM disclosed his criminal record to his former coworkers.
Complainant worked for the Agency from May 2, 2015 through August 17, 2015, when he voluntarily resigned. The stated reason on the resignation form was that he found another job. However, Complainant alleges it was PM's inaction investigating the parking lot incident, and "continually telling him that he did not work fast enough" that caused him to resign. On August 19, 2015, Complainant ran into a former coworker at the local mall, who told him, "I didn't know you did time" and that PM was telling other employees that Complainant was "let go because of his past criminal record." Complainant, concerned for his reputation, pursued the instant EEO Complaint.
On August 17, 2015, PM was informed by the Agency's Human Resources Office that Complainant's background check was complete and he had a criminal record that he previously failed to disclose. As Complainant already resigned, the Agency took no further action. PM denies revealing Complainant's past criminal record to other employees.
The Agency dismissed Claim 1 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely contact with an EEO Counselor. Claims 2 and 3 were dismissed for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states, in relevant part, that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. Under �1614.105(a)(1), an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The Agency or Commission may extend this time limit under �1614.105(a)(2), so long as the complainant can establish that he or she was not aware of the time limit, did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the EEO Counselor within the lime limit, or for other reasons considered sufficient by the Agency or Commission.
The alleged discriminatory event in Claim 1 occurred on May 23, 2015, but Complainant did not initiate contact with an EEO Counselor until August 28, 2015, which is beyond the forty-five (45) day limitation period. Complainant has not provided any argument or evidence on appeal sufficient to warrant an extension of the time limit for initiating EEO Counselor contact.
Claim 1 was properly dismissed for untimely contact with an EEO Counselor pursuant to 29 C.F.R. �1614.107(a)(2) and �1614.105.
EEOC Regulation 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
With regard to Claims 2 and 3, we find Complainant fails to state a claim under the EEOC regulations because he failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz, supra. Moreover, to the extent complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven to be true, would not indicate that complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Dep't of the Treasury, Request No. 05970077 (March 13, 1997) For instance, Claim 2 concerned only one instance of alleged harassment. On appeal, Complainant provides additional details on Claim 3, alleging PM not only told his former coworkers about his criminal record, but handed them Complainant's personnel documentation as "proof" that Complainant "did time." However, the alleged discriminatory act occurred after Complainant left the Agency and found employment elsewhere.
In light of Complainant's statement on appeal, we also note that Complainant's privacy-related concerns raised in Claim 3 fail to state a claim because they fall outside of EEOC jurisdiction. The Privacy Act, 5 U.S.C. � 552(g)(1), provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records. The Commission has held that jurisdiction over alleged violations of the Privacy Act rests exclusively with United States District Courts. See Story v. United States Postal Serv., EEOC Appeal No. 01953767 (Oct. 18, 1995); Concon v. United States Postal Serv., EEOC Appeal No. 01965280 (May 14, 1997) (allegation that Privacy Act violated when a supervisor allegedly allowed a coworker to read complainant's CA-1 form and coworker discussed its contents with other employees failed to state a claim because allegation of a Privacy Act violation is not within the purview of the EEO process); see also Osborn v. United States Postal Serv., EEOC Request No. 05950654 (Feb. 15, 1996).
Claims 2 and 3 were properly dismissed for failure to state a claim pursuant to C.F.R. �1614.107(a)(1).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M.
Carlton M. Hadden, Director
Office of Federal Operations
April 19, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120161028
5
0120161028