0120093745
02-25-2010
Richard Le, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Richard Le,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120093745
Agency No. 4F900015609
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 18, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In his complaint, complainant alleged that
he was subjected to discrimination on the bases of race (Asian), sex
(male), color (yellow), and age (DOB: February 12, 1965), when, since
August 2007, complainant has not been promoted to the position of Tool
and Parts Clerk. Complainant indicated that he applied for the Tool
and Parts Clerk bid on two occasions but was not given the position in
August 2007 and December 2008.
The record indicates that complainant contacted the EEO counselor
on February 27, 2009. The agency issued a partial dismissal/partial
acceptance of complainant's complaint on June 29, 2009. In that document
the agency defined the claim into two events. The agency accepted a
claim of discrimination from January 13, 2009 through February 2009
when complainant was not placed in a Tool and Parts Clerk bid position.
The agency then defined the "second" claim as, from August 2007 to January
12, 2009, when complainant was not placed in such a position. The agency
determined that complainant failed to timely contact the EEO Counselor
with regard to the "second" claim pursuant to 29 C.F.R. � 1614.107(a)(2).
Subsequently, the agency issued its final decision on August 18, 2009,
dismissing the remainder of the complaint pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. The agency noted that
management indicated that there was no Tool and Parks Clerk bid position
filled during since January 13, 2009. Further, the agency noted that
there were two other bids posted; however, complainant did not apply.
Therefore, the agency dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim.
This appeal followed without comment. The agency requests that the
Commission affirm the agency's dismissal.
As an initial matter, we find that the agency fragmented complainant's
claim of discrimination in its decision in June 2009. A review of the
record clearly shows that complainant alleged discrimination when in
August 2007 and December 2007, he bid for two posted Tools and Parts
Clerk positions. Complainant indicated that he had been performing the
Tools and Parts Clerk position since August 2007 despite not being placed
in that position. Therefore, the actual claim raised in complainant's
formal complaint should have been defined as the following: complainant
alleged discrimination when, in August 2007 and December 2007, complainant
was not placed in a Tools and Parts Clerk position despite performing
the position since August 2007. Therefore, we find that the alleged
discriminatory events occurred in August 2007 and December 2007.
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.
Upon review of the record, we find that the agency properly dismissed
the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO
Counselor contact. The agency provided proof of notice regarding the
time limits and the EEO complaint process. Complainant indicated that
he was aware of the alleged discrimination when he was not awarded the
bid position. As such, we find that complainant's contact in February
2009 was well beyond the 45 day time limit and he failed to show that
the time limit should be extended. Therefore, we affirm the agency's
dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
Since the Commission is dismissing the complaint as a whole pursuant to
29 C.F.R. � 1614.107(a)(2), we need not address the agency's dismissal
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
As such, the Commission affirms the agency's final decision dismissing
the complaint.
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 25, 2010
__________________
Date
2
0120093745
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093745