Martin Bashnski, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 22, 2000
01991235 (E.E.O.C. Feb. 22, 2000)

01991235

02-22-2000

Martin Bashnski, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Martin Bashnski v. United States Postal Service

01991235

February 22, 2000

Martin Bashnski, )

Complainant, )

)

v. ) Appeal No. 01991235

) Agency No. 4F-920-0126-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On November 27, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by him on

October 31, 1998, pertaining to his complaint 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> In his complaint, complainant

alleged that he was subjected to discrimination on the bases of race

(Caucasian), color (White), religion (Christian), and sex (male) when:

on March 18, 1998 complainant's manager made a derogatory remark about

him to a co-worker;

on March 20, 1998 a co-worker offended complainant when she said

"Jesus Christ." Complainant alleges further that the co-worker told

him to shut up when he commented about her remark;

on March 20, 1998 complainant suggested to his supervisor that a

co-worker needed some religious sensitivity training and his manager

advised complainant that she did not want him talking about God in

the workplace. Complainant alleges further that his supervisor implied

that she would write him up for doing so;

on March 23, 1998 complainant's union president and clerk craft director

called him to ask what had occurred on March 20, 1998;

in September 1997, complainant confronted a co-worker concerning

his use of offensive language. Complainant alleges further that his

supervisor subsequently informed him that freedom of speech allowed

the co-worker to make such remarks;

on October 22, 1997, complainant's manager harshly accused him of

passing rumors;

on October 30, 1997 complainant asked about the status of a new air

conditioner which caused him to question the agency's concern for his

safety; and

on November 14, 1997 he was advised that his working conditions were

unsafe and that he would be sent to perform duties outside of his

restrictions as a rehabilitation employee.

The agency dismissed claims (1), (2), (3) and (4) pursuant to

Volume 64 Fed. Reg. 37,644, 37, 656 (1999)(to be codified as 29

C.F.R. �1614.107(a)(1)), for failure to state a claim. The FAD

determined that complainant failed to demonstrate that he had suffered

any harm as a result of the incidents described in claims (1), (2), (3)

and (4). The FAD dismissed complainant's remaining claims, (5), (6),

(7) and (8), on the grounds that complainant failed to timely contact

an EEO Counselor pursuant to EEOC Regulation 29 C.F.R. �1614.105(a)(1).

Specifically, the agency found that complainant's EEO contact on March 3,

1998 was beyond the applicable time period for seeking counseling.

On appeal, complainant argues that the matters raised in his formal

complaint are part of a continuing violation.

Volume 64 Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.103(a)) provides for

the acceptance of complaints from aggrieved employees or applicants when

they allege that they have been discriminated against because of race,

color, religion, sex, national origin, age, disability, or retaliation.

In Odoski v. Department of Energy, EEOC Appeal No. 01901496 (April 16,

1990), the Commission stated that:

The only proper question under the purview issue is whether the

complaint alleges employment discrimination on a basis covered by the

EEO statutes. . . . If so, then the agency must accept the complaint

for processing regardless of what it may think of the merits.

In addition, the Odoski case stated that in considering whether an

employee is "aggrieved", it must be determined whether complainant has

suffered any harm to any of his "terms, conditions, and privileges of

employment." However, a remark or comment, unaccompanied by concrete

action, as reflected in claims (1) - (4), is not a direct and personal

deprivation sufficient to render an individual aggrieved. See Simon

v. U.S. Postal Service, EEOC Request NO. 05900866 (October 3, 1990).

Furthermore, a complainant is not aggrieved when a supervisor verbally

reprimanded him and nothing more occurred. Fuller v. U.S. Postal Service,

EEOC Request No. 05910324 (May 21, 1991). In this case complainant

has failed to demonstrate that any further action resulted from the

incidents described in claims (1) - (4). Complainant has therefore,

failed to demonstrate that he was aggrieved regarding these claims,

and the agency properly dismissed them for failing to state a claim.

The agency's decision dismissing claims (1) - (4) is AFFIRMED.

The FAD dismissed claims (5) - (8) on the grounds that complainant

failed to timely initiate contact with an EEO Counselor. Volume 64

Fed. Reg. 37,644, 37656 (1999) (to be codified and hereinafter referred to

as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)) 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.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

The incidents described in claims (5) - (8) occurred during September,

October, and November of 1997, while complainant's counselor contact

concerning these claims did not occur until March 1998, well beyond the

45 day time period for seeking counseling. Complainant does not indicate

that he was unaware of the time period for seeking counseling, nor does

he suggest that he was prevented for any reason for timely contacting

a counselor. Upon review, the Commission finds that these claims are

discrete incidents which should have triggered complainant's duty to

act to protect his rights at the time that the incidents purportedly

occurred. Moreover, we determine that it is unnecessary to determine

whether claims (5) - (8) are part of a continuing violation because even

if these claims were part of a continuing violation, none of the alleged

actions fell within the forty-five day period for timely contacting an

EEO Counselor. Accordingly, the agency's decision dismissing claims (5) -

(8) is AFFIRMED for the reasons set forth herein.

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:

February 22, 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

1On 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.