Mccarrol Page, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionMay 18, 2010
0120100746 (E.E.O.C. May. 18, 2010)

0120100746

05-18-2010

Mccarrol Page, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Mccarrol Page,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 0120100746

Agency No. 4H320009709

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated October 23, 2009, dismissing 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. and Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq. In his complaint, complainant alleged that he

was subjected to discrimination on the bases of race (African American)

and disability (head/shoulder) when:

1. Complainant's request for reinstatement was denied; and

2. On July 12, 2009, complainant learned that management provided negative

comments regarding his work performance on his disability retirement

form.

The agency dismissed claim 1 for untimely EEO Counselor contact and

claim 2 for failure to state a claim and further found that the claim

was a collateral attack on an earlier grievance decision. The agency

identified the date for claim 1 as occurring on May 27, 2009. The agency

further found that complainant did not contact an EEO Counselor until

July 12, 2009 and hence his Counselor contact occurred one day beyond

the 45-day regulatory period. With regard to claim 2, the agency found

that complainant was not aggrieved by the agency's alleged action and

the action was not severe enough to constitute harassment.

With regards to claim 1, we note that despite the agency's contention

that the alleged discriminatory event occurred on May 27, 2009, in

both his Informal and Formal complaints, complainant gives the date as

May 29, 2009. A review of the record shows that the letter notifying

complainant that his reinstatement request was denied is indeed dated May

27, 2009, however the agency has provided no evidence establishing that

complainant received the denial notice on that date. Where, as here,

there is an issue of timeliness, "[a]n agency always bears the burden of

obtaining sufficient information to support a reasoned determination as

to timeliness." Guy, v. Department of Energy, EEOC Request No. 05930703

(January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request

No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department of

the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission

stated that "the agency has the burden of providing evidence and/or

proof to support its final decisions." See also Gens v. Department of

Defense, EEOC Request No. 05910837 (January 31, 1992). As complainant

has consistently maintained he learned of the action on May 29, 2009,

we find that his July 12, 2009 Counselor contact was timely.

With regard to claim 2, the Commission finds that the complaint fails

to state a claim under the EEOC regulations because complainant failed

to show that he was subjected to unwelcome verbal or physical conduct

involving his protected classes, that the harassment complained of was

based on his statutorily protected classes, and that the harassment had

the purpose or effect of unreasonably interfering with hi work performance

and/or creating an intimidating, hostile, or offensive work environment.

See McCleod v. Social Security Administration, EEOC Appeal No. 01963810

(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th

Cir. 1982). Nor has he shown he suffered 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). Accordingly, the agency's final decision dismissing

complainant's complaint is affirmed in part and reversed in part and

claim 1 is remanded to the agency for further processing in accordance

with this decision and the ORDER below.

ORDER (E0900)

The agency is ordered to process the remanded claim in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claim within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington,

DC 20013. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant

has the right to file a civil action on the underlying complaint in

accordance with the paragraph below entitled "Right to File A Civil

Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

May 18, 2010

__________________

Date

2

0120100746

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120100746