Richard J. Welch, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.

Equal Employment Opportunity CommissionDec 3, 2009
0120092954 (E.E.O.C. Dec. 3, 2009)

0120092954

12-03-2009

Richard J. Welch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.


Richard J. Welch,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Western Area),

Agency.

Appeal No. 0120092954

Agency No. 1E801002909

DECISION

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

decision dated June 18, 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.

At the time of the events at issue, complainant was employed as a General

Clerk at the agency's General Mail Facility in Denver, Colorado. In his

complaint, complainant alleged that he was subjected to discrimination on

the bases of sex (male) and in reprisal for the instant complaint when:

1. On February 27, 2009, complainant became aware that a female had been

placed on the Secretary Relief Roster without asking, whereas a year

earlier, complainant was required to ask and submit a copy of a Form 991.

2. On June 17, 2008, complainant was not selected for the position of

Secretary, EAS-14, Denver, Colorado, and on April 17, 2009, he became

aware that the reason for his non-selection was gender bias.

3. On April 17, 2009, a decision was made to abolish the Secretary Relief

Roster.

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2)

for failure to contact the EEO counselor within the 45-day time period.

The agency noted that complainant contacted the EEO counselor on March

2, 2009. However, the events alleged in claims (1) and (2) occurred

in 2008. As to claim (3), the agency indicated that complainant did not

raise this claim until he filed his formal complaint which was filed on

June 4, 2009. As such, the agency determined that complainant did not

contact the EEO counselor regarding his claims of discrimination until

after the expiration of the 45-day time period.

CONTENTIONS ON APPEAL

This appeal followed. Complainant indicated, as to claim (1), that he did

not become aware of the difference in treatment regarding the Secretary

Relief Roster until he spoke to a female employee who did not have to

fill out a Form 991, but was placed in a secretary relief position.

He stated that he found out about the female employee on February 27,

2009, and contacted the EEO counselor on March 2, 2009, well within the

45-day time period. As to the issue of the non-selection, complainant

indicated it was not until the redress process that he discovered the

female selected for the position never held an executive secretary

position. Finally, as to claim (3), complainant indicated that it was

also discussed prior to filing his formal complaint during redress.

Therefore, complainant argues that he was timely in his EEO contact and

the dismissal should be reversed.

The agency requests that the Commission affirm its decision to dismiss

the complaint.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in �1614.105, �1614.106 and

�1614.204(c), unless the agency extends the time limits in accordance

with �1614.604(c).

EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved

person must initiate contact with an EEO 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.

EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the

Commission to extend the time limit if the complainant can establish that

complainant was not aware of the time limit, that complainant did not

know and reasonably should not have known that the discriminatory matter

or personnel action occurred, that despite due diligence complainant

was prevented by circumstances beyond his control from contacting the

EEO Counselor within the time limit, or for other reasons considered

sufficient by the agency or Commission.

As to claim (1), the record clearly establishes that in 2008 complainant

was informed by management that if he wanted to be placed on the

Secretary Relief Roster, he needed to make a request and submit a copy

of his form 991. Complainant initiated contact with an EEO counselor

regarding this matter on March 2, 2009, approximately a year later.

Complainant argues that his contact was timely because he did not learn

that a female co-worker was treated differently until February 2009.

We note that the agency also dismissed this matter for failure to state

a claim, noting that, even if the allegation were proven true, there

is no indication that complainant suffered any measurable personal

harm as a result. 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. Diaz v. Department of the Air Force, EEOC

Request No. 05931049 (April 21, 1994). We agree with the agency that claim

(1) was appropriately dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim. As such, we do not have to address the

timeliness issue.

As to claim (2), complainant also knew of his non-selection for the

position in question in 2008. He should have contacted the EEO counselor

at the time of the non-selection, not after gathering supporting evidence

regarding discrimination. Therefore, we affirm the dismissal of claims

(1) and (2) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO

counselor contact.

As to claim (3), we note that the agency abolished the Secretary Relief

Roster in April 2009 during the EEO counseling process. Therefore,

we cannot find that complainant's contact was untimely. However,

we note that claim (3) was also dismissed by the agency pursuant to 29

C.F.R. � 1614.107(a)(1) for failure to state a claim. Complainant has not

indicated how he was discriminated against based on the agency's decision

to abolish the Secretary Relief Roster for all employees. As such, we

affirm the agency's dismissal of claim (3) for failure to state a claim.

Accordingly, upon review of the record and for the reasons stated above,

we AFFIRM the agency's dismissal of the instant complaint.

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

December 3, 2009

__________________

Date

2

0120092954

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120092954