0120101104
06-24-2010
Charles J. Giordano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Charles J. Giordano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120101104
Agency No. 1B073000110
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 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.
BACKGROUND
In a complaint dated November 30, 2009, Complainant alleged that he was
subjected to discrimination on the basis of reprisal for prior protected
EEO activity under Title VII when: On October 17, 2009, he became aware
that two (2) coworkers removed for Zero Tolerance were allowed to return
to work in their former positions as Regulars, but on May 18, 2008,
he had been told that he had to return as a Part-Time Flexible (PTF).
In it final decision, the Agency determined that Complainant's complaint
should be dismissed pursuant to 29 C.F.R. 1614.107(a) (8), which provides
that an agency shall dismiss claims alleging dissatisfaction with the
processing of a prior complaint.
ANALYSIS AND FINDINGS
The Commission finds that Complainant's complaint is more properly
dismissed for failure to state a claim. See Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). The record indicates
that the previous complaint was settled and the terms of Complainant's
reinstatement were specified therein. Complainant is not alleging that
the settlement agreement was breached. Further, we find that the alleged
Agency actions were not of a type reasonably likely to deter Complainant
or others from engaging in protected activities. Accordingly, the Agency's
final decision dismissing Complainant's complaint is AFFIRMED.
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 24, 2010
__________________
Date
2
0120101104
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101104