0120101053
06-18-2010
Charles D. Gregory, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Charles D. Gregory,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120101053
Agency No. 1G761006409
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 14, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
In his complaint, Complainant alleged that he was subjected to
discrimination on the bases of race (Caucasian), sex (male), color
(White), disability, age (50 at the time of the incident), and reprisal
for prior protected EEO activity when, on or around June 19, 2009,
Complainant became aware that he has been under-compensated by the Office
of Workers' Compensation Programs (OWCP) for the time period of February
13, 2006, and ongoing.
The Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1)
finding that Complainant's complaint is not properly raised in the EEO
complaint process. The Agency determined that Complainant should have
raised this matter with the Department of Labor.
Complainant filed his appeal asserting that the Agency discriminated
against him as alleged. Complainant provided the Commission with several
documents relating to his claim with OWCP.
ANALSYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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,
.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. Dept. of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
The Commission has held that while the proper forum for contesting
the outcome of an OWCP claim is with the Department of Labor, the
Commission has retained jurisdiction for allegations that the Agency
delayed processing his claim because of discriminatory animus. See Foster
v. U.S. Postal Serv., EEOC Appeal No. 01951370 (May 8, 1995), request for
reconsideration denied, EEOC Request No. 05950693 (May 16, 1996); but see
Wade v. U.S. Postal Serv., EEOC Request No. 05980149 (February 2, 2001)
(finding that where complainant's OWCP claim was denied on the merits,
complainant suffered no harm by the Agency's alleged discriminatory
delay in processing the claim). Upon review of the record, we find that
the Agency correctly determined that Complainant's claim is related to
the outcome of an OWCP claim. Therefore, we find that the matter was
properly dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
Therefore, the Commission AFFIRMS the Agency's final decision.
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
June 18, 2010
__________________
Date
2
0120101053
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101053