0120160402
02-10-2016
Cletus W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cletus W.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160402
Agency No. 1G-336-0077-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated October 9, 2015, 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
During the period at issue, Complainant worked as a Mail Handler at the Agency's Seminole Processing and Distribution Center in Orlando, Florida.
On May 26, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race, color and age when:
1. on April 10, 2015 and other unspecified dates, management singled him out, accused him of taking extended breaks and threatened him with discipline; and
2. on April 28, 2015, he was issued a 14-day Time Off Suspension.
The record reflects that by letter dated June 4, 2015, the Agency accepted Complainant's claims for investigation. Thereafter, Complainant submitted an affidavit dated June 8, 2015, in which he withdrew race, color and age as bases. Instead, Complainant stated that he was discriminated against based on "nepotism."
On October 9, 2015, the Agency issued a final decision rescinding its June 4, 2015 Acceptance for Investigation Letter. The Agency framed Complainant's claims that he was subjected to harassment based on nepotism concerning claims 1and 2 as stated above. The Agency dismissed the formal complaint pursuant to 29 C.F.R. 1614.107(a)(1) for failure to state a claim.
The instant appeal followed.
ANALYSIS AND FINDINGS
In order to establish standing initially under 29 C.F.R. � 1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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. Complaints alleging retaliation prohibited by these statutes are considered to be complaints of discrimination for purposes of this part. 29 C.F.R. � 1614.103, 29 C.F.R. � 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).
Complainant, on appeal, asserts that he is the victim of nepotism and abuse of power. Nepotism is not a basis covered under Title VII or ADEA. Because Complainant withdrew race, color and age as bases, the Agency properly found that the instant formal complaint does not state a claim.
The Agency's final decision to dismiss the formal complaint for failure to state a claim is AFFIRMED.
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
February 10, 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
0120160402
3
0120160402
5
0120160402