0120120346
11-05-2012
Donald Snipes, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Donald Snipes,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120120346
Agency No. 4G350005411
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 23, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Postmaster at the Agency's post office facility in Montgomery, Alabama.
On September 8, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity when:
1. On July 21, July 28 and August 9, 2011, he was given investigative interviews;
2. On May 23, 2011l, he was issued two disciplinary actions;
3. On May 12, 2011, he was threatened with corrective action; and
4. On May 9, 2011, the manager told him, "you are excused cancel his reservations" in front of 25 managers.
The record indicates that claims 2, 3 and 4 were not brought to the attention of an EEO Counselor and were not included in the report of the EEO Counselor in this matter. As such, the Agency's final decision found that claim 1 failed to state a claim and dismissed the matter in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1). The Agency found further that because claims 2, 3 and 4 were not brought to the attention of an EEO Counselor, nor were they like or related to claims brought to the Counselor's attention, they too were subject to dismissal in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2). The Agency's final decision determined alternatively, that claims 2, 3 and 4 were untimely filed. Specifically, the Agency determined that Complainant failed to contact an EEO Counselor regarding the claims within 45 days of their occurrence.
The instant appeal followed.
ANALYSIS AND FINDINGS
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. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant's claim that he was subjected to investigative interviews on July 21, and 28 and August 9, 2011, do not without more, demonstrate that he suffered any personal harm with respect to the terms and conditions of his employment. Complainant has not shown how he was adversely affected by being given investigative interviews. See Jones v. Department of the Army, EEOC Request No. 05A00428 (March 1, 2002)(being subject to an agency investigation does not render an individual aggrieved where no adverse action from the investigation). In that regard, we find that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) 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 later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. United States Postal Service, EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal Service, EEOC Request No. 05891068 (March 8, 1990).
With respect to claims 2, 3 and 4, we find that the Agency properly dismissed Complainant's complaint. The record shows that during EEO counseling for the instant complaint, Complainant's only claim of discrimination was that he was subjected to investigative interviews on dates in July and August. As such, the above listed claims in Complainant's formal complaint were clearly not the subject of counseling with complainant's EEO Counselor. Moreover, there is no indication in the record that complainant's claims are like or related to the matter on which the Complainant received counseling. Complainant failed to provide any evidence to show how the claims asserted in his formal complaint are related to the matter presented to the EEO Counselor. Therefore, we find that Complainant's complaint was properly dismissed under 29 C.F.R. � 1614.107(a)(2).
Because we affirm the agency's decision to dismiss the claims for the reasons stated herein, we do not find it necessary to determine whether the complaint was properly dismissed on other grounds.
CONCLUSION
Accordingly, the agency's decision dismissing the complaint was proper for the reasons set forth herein and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
November 5, 2012
__________________
Date
2
0120120346
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120346