0120152251
01-08-2016
Amado C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Amado C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120152251
Agency No. 4B-110-0038-15
DECISION
On June 19, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 26, 2015, dismissing his complaint of unlawful employment discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment as a City Carrier Assistant at the Agency's Babylon Post Office in Babylon, New York.
On May 6, 2015, Complainant filed a formal complaint complaining the Agency did not hire him on October 18, 2013.
Complainant alleged that the Agency wrongly denied him employment on the ground he was not registered with the Selective Service System. He provided the Agency his affidavit that he immigrated to the United States at the age of 13 as a lawful permanent resident from Trinidad and Tobago, and he was unaware of the requirement to register, as were his parents. He affirmed that he did not learn of the requirement until age 37, when it was too late.
Complainant submitted a 2012 letter by the Selective Service System explaining Complainant could not register because he was older than 25. In this letter, the Selective Service System also wrote:
Section 12(g) of the Military Selective Service Act (50 App. U.S.C. 462(g) reads as follows:
(g) A person may not be denied a right, privilege, or benefit under Federal law by reason of failure to present himself for and submit to registration under section 3 (of the Military Service Selective Act) if -
(1) The requirement for the person to so register has terminated or become inapplicable to the person; and
(2) The person shows by a preponderance of the evidence that the failure to register was not a knowing and willful failure to register....
....Any explanation to justify your failure to register must be made to the agency administering the right, benefit, or privilege you seek....The final decision regarding your eligibility is with the authority of that agency.
The Agency refused to hire Complainant because he was not registered with the Selective Service System. Complainant appealed. On January 6, 2014, the Agency denied the appeal. It explained that its regulations were clear that males of the ages 18 through 25 who were born after December 31, 1959, including permanent resident aliens, must register with the Selective Service System. It observed that the letter Complainant provided from the Selective Service System stated the final decision regarding his eligibility (for the right, benefit or privilege) is with the authority of that agency.
In its FAD, the Agency dismissed the complaint for failure to state a claim, reasoning that Complainant did not identify a protected purview of discrimination. It explained therein that prohibited discrimination includes actions taken based on race, color, religion, sex, age (40+), national origin, physical and/or mental disability, genetic information, or retaliation for participation in protected EEO activity. The Agency referenced the formal complaint form which solicits the type of discrimination alleged and lists the above bases for check off, and the prior notice of right to file a complaint form which explains a discrimination complaint can only be processed if the complainant alleges discrimination on one of the above bases. Complainant did not identify any protected bases.
The Agency also dismissed the complaint for failure to timely initiate EEO counseling. It reasoned that the alleged discrimination occurred in October 2013, and Complainant did not initiate EEO counseling until January 28, 2015, far beyond the 45 calendar day time limit.
On appeal, Complainant does not raise a protected basis of discrimination, nor make any argument.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.103 requires Agencies to process complaints of discrimination alleging discrimination on the above bases. Complainant does not allege discrimination based on any protected bases enforced by the EEOC. For this reason, his complaint does not state a claim. Ramirez v. United States Postal Service, EEOC Appeal No. 0120100944 (May 28, 2010).
Accordingly, the FAD is AFFIRMED.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 8, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Because we affirm the Agency's dismissal of the complaint for failure to state a claim, we need not address its second ground for dismissal - timeliness.
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