0120122193
10-11-2012
Jason D. Flatt, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Jason D. Flatt,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120122193
Agency No. 4C-370-0030-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 11, 2012, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a PSE Clerk at the Agency's Post Office facility in Rickman, Tennessee. The record indicated that he contacted an EEO Counselor on December 27, 2011. When the matter could not be resolved, Complainant was issued a Notice of Right to file a formal complaint. On March 3, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (Brain Cancer Survivor) when:
1. Beginning on or about August 13, 2011, Complainant was not afforded sufficient training and, on August 19, 2011, force to resign in lieu of termination;
2. On September 21, 2011, he was subjected to offensive comments, and denied a reasonable accommodation, which resulted in Complainant's resignation on September 22, 2011;
3. On or around October 28, 2011, Complainant became aware that he was not paid all the hours he worked on September 21 and 22, 2011; and
4. On February 3, 2012, Complainant became aware that his privacy was violated.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2). The Agency noted that Complainant resigned on August 19 and September 22, 2011. The Agency indicated that Complainant contacted numerous individuals but failed to make contact with the EEO Counselor until December 2011, well beyond the 45 day time limit. Further, the Agency noted that claim (4) was never raised with the EEO Counselor nor did Complainant provide specific information to show how he was harmed by the alleged event. As such, claim (4) was dismissed pursuant to 29 C.F.R. �1614.107(a)(1).
Complainant appealed arguing the merits of his complaint. We note that Complainant did not did not explain his delay in contacting the EEO Counselor. The Agency requested that the Commission affirm its decision. The Agency included an affidavit form the Postmaster who stated she took Complainant to the Bulletin Board in the break room. She stated that informed him that there was relevant information on the board. The Bulletin Board included a copy of the EEO Poster providing employees with information about the EEO complaint process and the 45 day time limit.
ANALYSIS AND FINDINGS
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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). We note that in claim (4), Complainant asserted that his "privacy" was violated. However, Complainant failed to further explain this allegation. Without further detail, we find that Complainant has not shown how he was harmed by the alleged event. As such, we affirm the dismissal of claim (4).
As for claims (1) - (3), the Agency found that Complainant's EEO contact was made in an untimely manner. 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.
The record indicated that Complainant was subjected to alleged discrimination on August 19, 2011, September 22, 2011, and October 28, 2011. Complainant did not contact the EEO Counselor until December 27, 2011, well beyond the 45 day time limit. The record showed that Complainant should have known of the time frames based on the posting on the Bulletin Board which was shown to him by the Postmaster. Further, Complainant has not provided any explanation for his delay in contacting the EEO Counselor. As such, we find that the Agency's dismissal of claims (1) - (3) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the compliant.
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
October 11, 2012
__________________
Date
2
0120122193
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122193