01981006
02-22-1999
Appellant )
James L. Bates v. United States Postal Service
01981006
February 22, 1999
James L. Bates, )
Appellant )
) Appeal No. 01981006
v. ) Agency No. HI-0136-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
complaint of discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq., and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. �621
et seq. The appeal is accepted by the Commission in accordance with the
provisions of EEOC Order No. 960.001.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on June 17, 1997, alleging
discrimination based on race (white), national origin (Native American),
sex (male), and age (49) when both the Postal Inspection Service and
U.S. Attorney failed to prosecute a patron that assaulted him while
he was performing his duties as a Letter Carrier. In a final agency
decision (FAD) dated June 6, 1997, the agency dismissed appellant's
complaint for failure to state a claim. The agency found that appellant
had not demonstrated a harm or loss with respect to a term, condition,
or privilege of his employment. The agency also found that whether or
not the alleged offender should be prosecuted was up to the U.S. Attorney
rather than the Postal Inspection Service. In this regard, the agency
stated that appellant should have filed the complaint against the
U.S. Attorney.
ANALYSIS AND FINDINGS
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;
�1614.106(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). EEOC Regulation 29 C.F.R. �1614.107(a)
provides that an agency shall dismiss a complaint that fails to state
a claim under �1614.103.
We find appellant has not demonstrated that he is aggrieved. Initially,
we note that 29 C.F.R. �1614.106(a) provides that a complaint must
be filed against the agency that allegedly discriminated against
the complainant. In this case, it is apparent from the record
that appellant takes issue with the prosecutorial decision of the
U.S. Attorney, something over which neither the agency nor the Commission
has jurisdiction. Furthermore, even assuming the Postal Service had the
ability to prosecute the alleged offender, it is not apparent how the
failure to prosecute harmed a term, condition, or privilege of appellant's
employment. Finally, we note that appellant admitted filing charges with
his local police and that the patron was prosecuted locally. Accordingly,
we find that the agency properly dismissed appellant's complaint for
failure to state a claim.
CONCLUSION
The agency's decision to dismiss appellant's complaint for failure to
state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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 the 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 (SO993)
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 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:
Feb 22, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations