0120120046
11-05-2012
Pete Hunt, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Pete Hunt,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120120046
Agency No. 1K-303-0004-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 26, 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 was on extended leave. He formerly worked as a Manager, Distribution Operations at the Agency's Atlanta Logistics and Distribution Center facility in Atlanta, Georgia.
According to the EEO counselor's report chronology, on November 8, 2010, Complainant filed an earlier formal EEO complaint (Agency No. 1H-303-0024-10). On November 9, 2010, Complainant began a period of approved extended leave and is now retired. On November 10, 2010, the Plant Manager entered a notation in the electronic system noting that no end-of-the-year discussion was held because Complainant was on leave. Complainant concedes that he was aware that other managers received their evaluations by December 31, 2010. On February 26, 2011, Complainant mailed to the Plant Manager his request for a review of his evaluation and the 2010 ratings under "eRecourse". The term "eRecourse" refers to the Agency's internal appeal process for challenging evaluation ratings.
On August 2, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when his supervisor did not share his end-of-the-year evaluation with Complainant and delayed responding to Complainant's request for review.
The Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency reasoned that Complainant had not been harmed by the delay in receiving feedback on his evaluation or the completion of the review process. The Agency also maintains that Complainant was aware of his evaluation rating by no later than February 26, 2011, because he challenged the final rating. In the alternative, the Agency dismissed the complaint for untimely EEO counselor contact because Complainant was aware that he had not received his evaluation by the end of December of 2010, and other managers had received theirs, but Complainant did not initiate EEO counseling until May 27, 2011, beyond the required 45-day limitation period.
The instant appeal followed.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee of 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 or genetic information. Complains alleging retaliation are considered to be complains of discrimination. 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). 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 pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant's claim is that the Agency did not provide him with information in a timely manner and that he "was harmed since the Postal Service did not follow its Policies and Procedures for EAS Managers End-of-Year Evaluations". There is no allegation that the delay altered his overall rating. In this case, the rating remained the same, after the Agency shared the information and completed its review process. There is no evidence that the delay resulted in him not getting a benefit to which he was otherwise entitled. The Commission finds that the complaint fails to state a claim.
The Agency also dismissed the complaint for untimely EEO counseling. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the date of the personnel action or the occurrence of the matter alleged to be discriminatory.
In this case, Complainant acknowledges that he became aware that other managers had received their evaluations by December 31, 2010 and Complainant had not. The Agency argues that Complainant was aware of his 2010 rating no later than February 26, 2010, when Complainant sought a review of the evaluation and rating through the eRecourse process. Complainant, on the other hand, asserts that he did not realize that discrimination occurred until May 27, 2011, which is the date he contacted the EEO Counselor.
Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). The Agency provided evidence that Complainant was aware of the potential discriminatory action by December 31, 2010 or no later than February 26, 2010. The record includes an affidavit that indicates that an EEO poster is on display at the facility. Complainant also had prior EEO action and was aware of the filing requirements. We find that the Agency met its burden in this case of establishing that Complainant's initial EEO counseling contact was untimely made.
Upon review, therefore, we find that Complainant's complaint was properly dismissed for failure to state a claim and for untimely EEO contact.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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
0120120046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120046