Thomas J. Wright, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 16, 2000
01a03000 (E.E.O.C. Aug. 16, 2000)

01a03000

08-16-2000

Thomas J. Wright, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Thomas J. Wright v. United States Postal Service

01A03000

August 16, 2000

.

Thomas J. Wright,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03000

Agency No. 4C-170-0001-00

DECISION

Based on a review of the record, we find that the agency properly

dismissed complainant's complaint, pursuant to 64 Fed. Reg. 37,644, 37,656

(1999)(to be codified and hereinafter referred to as EEOC Regulation 29

C.F.R. � 1614.107 ).<1>

In a complaint dated November 23, 1999, complainant, a Letter Carrier,

PS-5, at the agency's Coudersport Post Office, in Coudersport,

Pennsylvania, alleged that he was subjected to discrimination on the

basis of retaliation (prior EEO activity) when:<2>

(1) on March 17, 1995, he filed a grievance;

(2) on an unspecified date, management attempted to obstruct complainant's

OES claim;

(3) on December 5, 1995, complainant was accused of implicating a

co-worker of mail tampering;

(4) on December 7, 1995, complainant was accused of implicating a

co-worker of mail tampering and conspiring to oust the Postmaster and

he was threatened with being fired;

(5) the agency attempted to obstruct complainant's November 17, 1997

Office of Workers Compensation Program (OWCP) claim for benefits by

denying his requests for a copy of a letter sent to Injury Compensation

in October 1997 and on November 15, 1997; on January 11, 1996 and

September 5, 1997, complainant was denied sick leave; on January 9,

1996 CA2 Accident Form; on November 28, 1995, doctor's office notes;

on October 31, 1995, letter to Injury Compensation; on October 26, 1995,

doctor allowed complainant one mile per day yet collections are not one

mile per day; on October 18, 1995, given limited duty with no clerical

duties; on October 16, 1995, denied meaningful work; on October 16,

1995, dismissed from work room until Harrisburg contacted;

(6) on August 2, 1998 and September 22, 1998, complainant was denied

leave;

(7) on September 23, 1998, the Postmaster denied knowledge of receiving

a grievance form;

(8) from March 9, 1998, unfair labor practices stopped by mail flow

stopped to case;<3>

(9) on unspecified date, management edited fictitious and duplicate

addresses;

(10) on March 9, 1998, management persuaded employees to merge box mail

with his route;

(11) a memo slip, dated May 19, 1994, was given to complainant by a

co-worker whose attempt to deal with the EEO process failed; and a memo

slip, dated December 4, 1996, was given to complainant by a co-worker

concerning his attendance; on November 28, 1997, an incident involving

a co-worker; and

(12) on October 2, 1999, a handout by management that states fraudulent

workmen compensation claim given to inspectors.

On February 7, 2000, the agency issued a final agency decision (FAD)

dismissing complainant's complaint for failure to state a claim

in accordance 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(1).

In the FAD, the agency found that although complainant claimed he

was discriminated based on retaliation (prior EEO activity) a review

of agency records disclosed no prior EEO activity. In light of this

fact, the instant complaint was dismissed. In the alternative, the FAD

dismissed issues (1), (3), (4), (5), (6), (7), (8), (10), and (11) for

untimely EEO counselor contact.<4> The FAD also dismissed issues (2),

(9), and (12) for failure to state a claim, noting that the complainant

failed to provide evidence that would suggest that he suffered from a

personal loss or harm with respect to a term, condition, or privilege

of employment as a result of the agency's actions in this case.

Protected Activity

The complainant countered the agency's finding that he failed to state a

claim because he has no record of prior EEO activity with the fact that

he essentially served as a co-worker's (co-worker) EEO representative

in a separate case (Agency No. 4C-170-1025-96) which the agency has not

refuted. Complainant asserts that his EEO representation of his co-worker

began after the co-worker complained to him about a learning disability.

Thereafter, the co-worker asked complainant to receive copies of any

official actions issued against him by the agency. The co-worker believed

that the Responsible Management Official (RMO) would treat him fairly

if he knew that the complainant would also be receiving documentation

bearing witness to the agency's actions against him. As evidence of

this �arrangement,� complainant submitted a memo slip issued by the RMO

addressed to the co-worker, dated December 4, 1996, involving an official

discussion and a proposed Letter of Warning for uncooperative behavior.

This memo was carbon copied (�cc:�) to the file and to complainant.

Complainant alleges that this memo was hand-delivered to him by the RMO

and validates his participation in prior EEO activity.

The Commission has stated that "[t]he anti-reprisal provision of Title

VII protects those who participate in the EEO process and also those who

oppose discriminatory employment practices. Participation occurs when an

employee has made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding or hearing. . . . [A] variety

of activities has been found to constitute opposition. . . . Because

the enforcement of Title VII depends on the willingness of employees to

oppose unlawful employment practices or policies, courts have interpreted

section 704(a) of Title VII as intending to provide �exceptionally

broad protection to those who oppose such practices'. . . ." Whipple

v. Department of Veterans Affairs, EEOC Request No. 05910784 (February

21, 1992). Here, we find that complainant's involvement with his

co-worker's EEO case to be sufficient assistance within the EEO context

to constitute protected activity covered under Title VII and should not

have been dismissed for failure to state a claim based on retaliation.

Untimely EEO Counselor Contact

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) 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.

Evidence of record indicates that complainant did not contact an EEO

counselor until September 17, 1999, which is well beyond the forty-five

(45) day limitation period with regard to issues (1), (3), (4), (5),

(6), (7), (8), (10), and (11). On appeal, complainant contends that he

was unaware of the time limits because the EEO posters were covered

up and that he was unaware of what retaliation was. However seeing

as complainant was helping a fellow employee with his EEO claim as far

back as December 1996, as well as the fact that complainant was pursuing

similar matters through the grievance process, we find complainant's

contention without merit and insufficient to justify an extension of the

applicable time limit for almost as long ago as five years. See Baldwin

County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam)

("One who fails to act diligently cannot invoke equitable principles to

excuse lack of diligence"); Rys v. U.S. Postal Service, 886 F.2d 443,

446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff

must have diligently pursued her claim").

Moreover, issues (1), (5), (7), and (8) involve grievance matters and

unfair labor practices which are not with the purview of EEOC regulations.

The Commission has held that an employee cannot use the EEO complaint

process to lodge a collateral attack on another proceeding. See Wills

v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);

Kleinman v. United States Postal Service, EEOC Request No. 05940585

(September 22, 1994); Lingad v. United States Postal Service, EEOC

Request No. 05930106 (June 24, 1993). It is inappropriate to now

attempt to use the EEO process to collaterally attack actions which

occurred during the grievance process.

Failure to State a Claim

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) provides,

in relevant part, that an agency shall dismiss a complaint that fails

to state a claim. The Commission finds that issues (2), (9), and (12)

fail to state a claim because the allegations, even if proven to be true,

would not indicate that complainant has been subjected to harassment

that was sufficiently severe or pervasive to alter the conditions of

his employment. Moreover, the complaint does not otherwise challenge an

unlawful employment policy or practice. See Cobb v. Department of the

Treasury, Request No. 05970077 (March 13, 1997). The Commission also

finds that complainant fails to state a claim of reprisal with regard

to these issues. Under present Commission policy, claimed retaliatory

actions which can be challenged are not restricted to those that

affect a term or condition of employment; a complainant is protected

from any discrimination which is reasonably likely to deter protected

activity. See EEO Compliance Manual Section 8, �Retaliation;� No. 913.003

(May 20, 1998), p. 8-15. Upon review, we find no evidence that alleged

incidents in issues (2), (9), and (12) would have reasonably deterred

protected activity. Accordingly, the agency's final decision dismissing

complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 16, 2000

__________________

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.

2We note that the listed allegations were addressed by the agency verbatim

as they were formulated and submitted by the complainant in conjunction

with his formal complaint of discrimination.

3 This allegation is stated verbatim from both the complainant's formal

complaint and the FAD.

4 The agency also dismissed the noted issues under the continuing

violation theory. The agency noted that complainant filed grievances

on issue (1) on March 17, 1995, and issue (7) on September 23, 1998.

The agency's position was that the complainant was alerted to protect

his rights and elected to file grievances with regard to both of these

allegations. The agency asserted that the filing of these grievances

was of such permanence or finality that they triggered the complainant's

duty to assert his rights.