0120083828
02-10-2009
Zhen J. Zheng, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Zhen J. Zheng,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083828
Agency No. 4F-900-0284-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated August 25, 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.
On April 22, 2008, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On August 1, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to discrimination on
the bases of race, sex, and age when:
(1) on April 15, 2008, he was issued a Seven (7) Day Suspension;
(2) he was not paid for an April 22, 2008 Employee Assistance Program
(EAP) meeting; and
(3) on May 2, 2008, he was not permitted to attend a safety meeting.1
In its August 25, 2008 final decision, the agency dismissed claim (1)
on the grounds of raising the same claim that is pending before or has
been decided by the agency or the Commission, pursuant to 29 C.F.R. �
1614.107(a)(1). Specifically, the agency stated that complainant
raised the same claim in a prior EEO complaint, identified as Agency
No. 4F-900-0112-08. In that prior complaint, complainant alleged that
he was the victim of unlawful employment discrimination when on or about
April 8, 2008, he received a 7-day suspension. The agency determined
that claim (1) in the instant complaint and the prior complaint address
the same matter.
The agency dismissed claims (2) - (3) pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. Specifically, the agency
found that complainant failed to show he suffered a personal loss or harm
to a term, condition or privilege of his employment. The agency further
concluded that the alleged acts did not rise to the level of harassment.
The agency also dismissed claim (2) on the alternative grounds of
untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
Specifically, the agency determined that complainant did not raise claim
(2) until August 1, 2008, when he filed the instant formal complaint.
The agency determined that it "was approximately 100 days after the
incident claimed, and well beyond 45 days after Complainant was allegedly
not paid for attending the April 22, 2008 EAP session." The agency found
that the alleged incident of discrimination should have given rise to a
suspicion of discrimination at the time it occurred, and that complainant
failed to timely contact an EEO Counselor; and that complainant failed
to exercise due diligence in contacting an EEO Counselor.
Claim (1)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No. 01955890
(April 5, 2006) rev'd on other grounds. EEOC Request No. 05960524
(April 24, 1997).
The Commission notes that the record contains a copy of a document
identified as "Acknowledgement of Amendment to Complaint" for Agency
No. 4F-900-0112-08. Therein, the agency accepted complainant's request
to have his complaint amended to include the claim that he was subjected
to discrimination on the bases of race, national origin, age and reprisal
for prior EEO activity when, on or about April 8, 2008, he received a
7-day suspension. The record also contains a copy of the investigation
report for the prior complaint. Therein, the investigator stated that
according to complainant, he received a 7-day suspension on April 15,
2008. Specifically, complainant stated that he was given an investigative
interview on April 8, 2008, and was asked to explain why he picked up
his phone while working. We determined that claim (1) and the above
referenced complaint involve the same 7-day suspension issued on April
15, 2008. Therefore, we find that the agency properly dismissed claim
(1) for stating the same claim.
Claim (2)
While the agency dismissed claim (2) on the alternative grounds of
untimely EEO Counselor contact, we find that it is more properly analyzed
pursuant to 29 C.F.R. � 1614.107(a)(2), which states, in pertinent part,
that an agency shall dismiss a complaint which raises a matter that has
not been brought to the attention of an EEO Counselor, and is not like
or related to a matter on which the complainant has received counseling.
A review of the record reflects that complainant raised his claim of
not being paid for an April 22, 2008 EAP meeting in the instant formal
complaint. The record is devoid of evidence that complainant previously
raised this matter with an EEO Counselor. In addition, complainant has
not shown that this matter is like or related to the other matters he
raised during counseling. Therefore, the agency properly dismissed claim
(2).
Claim (3)
The regulation set forth at 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. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). 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).
Upon review, the Commission finds that complainant has failed to allege
facts sufficient to assert harm or loss to a term, condition, or privilege
of his employment to render him aggrieved under EEOC regulations.
Therefore, we find that the agency improperly dismissed claim (3) for
failure to state a claim.
Accordingly, we AFFIRM the agency's dismissal of claims (1) - (3).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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, D.C. 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 (Z0408)
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
February 10, 2009
__________________
Date
1 The record reflects that complainant abandoned the following claims:
he was sent home because there was no work within his restrictions,
he was denied auxiliary assistance and pre-shift overtime, was yelled
at, and was threatened with an Article 16.7 suspension by raising them
during EEO counseling but not including them as part of the instant
formal complaint.
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2
0120083828
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120083828