01981194
10-14-1998
Al-Amin S. As'Salaam, )
Appellant, )
)
v. ) Appeal No. 01981194
) Agency No. 1K-211-0118-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq., and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. �621 et seq. The final agency decision
was issued on October 14, 1997. The appeal was postmarked December 1,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of failure to state a claim.
BACKGROUND
Appellant initiated contact with an EEO Counselor on March 17, 1997.
On June 23, 1997, appellant alleged that he was discriminated against
on the bases of his race (African-American), color (black), sex (male),
age (52), physical disability (great right toe, injury to left knee),
mental disability (stress, hypertension and related disorders), and in
reprisal for his previous EEO activity when on February 12, 1997, and
continuing to the filing of the instant complaint, the agency failed to
provide him with the proper OWCP forms, thus delaying his submission of
the forms to the Office of Workers' Compensation Programs.
In its final decision, the agency dismissed appellant's complaint on
the grounds of failure to state a claim. The agency determined that
there is no evidence that appellant suffered any harm with respect to a
term, condition, or privilege of his employment because of the agency's
alleged action. The agency indicated that the relevant OWCP forms were
indeed mailed to appellant.
The record indicates that an Injury Compensation Specialist did
receive appellant's request for claim forms from appellant and she
stated that she sent appellant the forms at that time by regular mail.
After appellant contacted the EEO Counselor, the forms were again sent
by certified mail, however, the forms were not picked up by appellant.
The agency then sent the OWCP forms to appellant by constructive delivery,
which were received at appellant's residence on September 24, 1997.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and
national origin), the ADEA (discrimination on the basis of age when the
aggrieved individual is at least 40 years of age) and the Rehabilitation
Act (discrimination on the basis of disability) shall be processed in
accordance with Part 1614 of the EEOC Regulations. To establish standing
as an "aggrieved employee" within the context of 29 C.F.R. �1614.103,
appellant must allege, first of all, that he has been injured in fact.
Hackett v. McGuire Bros., 445 F.2d 447 (3rd Cir. 1971). Specifically,
appellant must allege some direct harm which affects a term, condition,
or privilege of employment. See Trafficante v. Metropolitan Life
Insurance Co., 409 U.S. 205 (1972). The only proper questions in
determining whether an allegation is within the purview of the EEO
process are whether the complainant is an aggrieved employee and whether
he has alleged employment discrimination covered by the EEO statutes.
An employee is "aggrieved" if he has suffered direct and personal
deprivation at the hands of the employer. See Hobson v. Department of
the Navy, EEOC Request No. 05891133 (March 2, 1990).
We find that appellant's complaint was properly dismissed by the agency.
We find that in the present case, appellant failed to identify an injury.
While appellant claims that his request for forms went unanswered, the
record indicates that the forms were indeed sent to appellant. Appellant
failed to show an injury for which redress through the EEO process would
be available. Accordingly, the agency's decision to dismiss appellant's
complaint for failure to state a claim was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
Oct. 14, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations1The record
does not indicate when appellant
received the final agency decision.
Absent evidence to the contrary,
we find that the instant appeal was
timely filed.