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.