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