Kenneth L. Moore, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.

Equal Employment Opportunity CommissionFeb 19, 2010
0120093701 (E.E.O.C. Feb. 19, 2010)

0120093701

02-19-2010

Kenneth L. Moore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.


Kenneth L. Moore,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Pacific Area),

Agency.

Appeal No. 0120093701

Agency No. 1F809000809

DECISION

Complainant filed a timely appeal with this Commission from a final agency

decision (FAD) dated July 22, 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. In his

complaint, complainant alleged that he was subjected to discrimination

on the bases of race/color (black) when:

1. in July and August of 2006 and October 2007, he was required to take

his entire week of vacation off rather than only the few days of annual

leave he wanted and he did not receive work pay on the days he reported

to work but instead received vacation pay;

2. in approximately February 2009, he became aware that other employees

were allowed to work without a lunch break, whereas he was not allowed

to take his lunch break at the end of his tour; and

3. on March 12, 2009, he was placed on Emergency Placement-Off Duty

Status without Pay for failing to follow instructions.

The agency dismissed claim 1 for failure to timely initiate EEO

counseling. It reasoned that complainant initiated contact with an

EEO counselor on March 13, 2009, beyond the 45 calendar day time limit

to do so. The agency dismissed claim 2 for failure to state a claim.

It reasoned complainant was not harmed. The agency dismissed claim 3

for failure to state a claim. It reasoned that prior to the complaint

being filed, there was a grievance resolution which resolved the claim by

making a pay adjustment by paying complainant for the time he was out on

the emergency off-duty status. On appeal, complainant makes no comment.

An aggrieved person must seek EEO counseling within 45 days of the date

of the alleged discriminatory action, or in the case of a personnel

action, within 45 days of the effective date of the action. 29 C.F.R. �

1614.105(a)(1) & .107(a)(2). Applying this regulation, we find that

complainant failed to timely initiate EEO counseling on claim 1.

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). Complainant has not explained how he

was aggrieved by the agency not allowing him to end his tour with his

lunch break.

The agency's dismissal of claim 3 is supported by Commission

precedent. See Stevenson v. United States Postal Service, EEOC Appeal

No. 01A52057 (April 27, 2005) (affirmed dismissal

for failure to state a claim of a complaint alleging discriminatory

seven day suspension where via a grievance settlement, the suspension was

rescinded prior to the filing of the formal complaint); Cruz v. United

States Postal Service, EEOC Appeal No. 0120091496 (July 24, 2009)

(applying Stevenson where an emergency off duty status was rescinded

per a grievance settlement prior to the filing of the EEO complaint).

Accordingly, the FAD is affirmed.

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

February 19, 2010

__________________

Date

2

0120093701

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120093701