0120091063
07-02-2009
Raymond L. Stark, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Raymond L. Stark,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091063
Agency No. 1C452002308
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 4, 2008, 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. Complainant alleged that he was subjected
to discrimination on the bases of race (Caucasian), sex (male), color
(White), age (50 years old at the time complainant learned of the alleged
incident), and reprisal for prior protected EEO activity under a statute
that was unspecified in the record when:
1. Complainant was subjected to harassment and was not selected for
various assignments between October 13, 2006 and May 23, 2008; and
2. On or about August 11, 2008, complainant's privacy was violated when
his personal information was shared with coworkers.
The agency dismissed claim 1 for untimely EEO counselor contact, noting
that the most recent incident occurred on May 23, 2008 and complainant did
not contact an EEO counselor until September 19, 2008, which is beyond the
45-day limit. The agency dismissed claim 2 for failure to state a claim,
noting that complainant was not aggrieved. The agency further noted
that to the extent complainant was alleging a Privacy Act violation, the
EEOC has no jurisdiction to address such claims. Complainant argues on
appeal that he only learned of the alleged discriminatory act on August
11, 2008 and that is his EEO counselor contact is thus timely.
Complainant states that in September 2006 he was issued a Notice of
Proposed Removal (Notice). On October 13, 2006, he entered into a
settlement agreement with the agency and as part of that agreement, the
agency agreed to rescind the Notice and expunge it from complainant's
personnel file. Complainant contends that, despite the agreement,
on August 11, 2008, he received an email that indicated that another
employee had a copy of the September 2006 Notice. A review of the
records, however, reveals that the settlement agreement in question
is not an EEO settlement agreement. Therefore, the Commission has no
jurisdiction over any alleged violation of complainant's rights with
respect to that agreement and complainant's allegation does not state a
claim of employment discrimination under the laws and regulations enforced
by this Commission. Furthermore, with respect to the nonselections and
harassment, complainant has not identified any incident that occurred
within 45 days prior to his EEO counselor contact. For the above reasons,
therefore, we affirm the FAD.
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 (S0408)
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 (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
July 2, 2009
__________________
Date
2
0120091063
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091063