0120142152
10-23-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120142152
Agency No. 4F-945-0027-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 15, 2014, dismissing a formal 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Mail Handler Equipment Operator at the Agency's Sacramento P&D Center, West Sacramento, California.
On March 12, 2014, Complainant filed the instant formal complaint alleging that the Agency subjected him to discrimination on the bases of race, national origin, sex, age, and in reprisal for prior protected activity.
On April 15, 2014, the Agency issued a final decision. Therein, the Agency defined the matter raised in the formal complaint as follows:
on November 26, 2013, Complainant became aware that a Labor Relations Specialist breached the Privacy Act when she wrote letter alleging that Complainant had inquired about a position in Labor Relations.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The instant appeal followed. On appeal, Complainant claimed that the Agency mischaracterized his formal complaint. Specifically, Complainant asserted that the matter raised in the formal complaint addressed the Agency's purported willful and intentional action in writing a letter to a Union official that that smeared his reputation, thereby creating a hostile work environment.
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).
A fair reading of the formal complaint reflects the following raised claim. Complainant, a Mail Handler at the Agency's Oakland P&DC at the time of the alleged discrimination, alleged that the Labor Relations Specialist, in January 24, 2014 response to a written request from President of National Postal Mail Handlers Union Local 302, provided false information indicating that he had inquired about a position in Labor Relations that smeared his reputation with the union.
We do not find that the subject claim addresses a personal loss or harm to a term, condition, or privilege of Complainant's employment. The response of the Agency official was to a written request from a Union official regarding parties who had purportedly submitted an application for consideration for a particular position. As the Agency noted, this matter appears to relate to interactions initiated by Complainant's union, and are more properly addressed with that union, and not through the EEO complaint process. Moreover, even if proven to be true and viewed in a light most favorable to Complainant, the subject claim would not indicate that he has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Also, the alleged Agency action was not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998).
Finally, to the extent that Complainant indeed intended to raise a claim of a violation of the Privacy Act, such a matter is outside the purview of the EEO complaint process. Bucci v. Department of Education, EEOC Request Nos. 05890289, 05890290, 05890291 (April 12, 1989).
CONCLUSION
The Agency's final decision dismissing the formal complaint for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
October 23, 2014
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
__________________
Date
______________________________
Compliance and Control Division
01 & 07 Procedural Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director, Office of Federal Operations Director, Appellate Review Program FROM: Thomas P. Mecherikunnel, Attorney 10/21/14 Joel Cavicchia, Supervisor Catherine McNamara, Division Director Appeal Number(s) 0120142152 Agency Number(s) 4F-945-0027-14 Hearing Number(s) Complainant(s): Fernando Matta Agency: USPS (PAC) Decision: Affirm Statute(s) Alleged Title VII and ADEA Basis(es) Alleged NH - National Origin - Hispanic, Sex-GM, Age-AO-42 Issue(s) Alleged H1 (Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
(Check All Applicable Codes) Procedural Codes ? 3K - Procedural Decision
? 3N - Appeal Denied/Dismissed
? 3P - Adverse Inference
? 4H - OFO Affirmed FAD
? 3M - OFO Reversed and Remanded
? 4J - OFO Modified FAD
? 3L - OFO Vacated/Remanded ALL of Agency's Merits
Decision
? 3R - Return to Agency for Consolidation
? 3S - Return to AJ for Consolidation
? 4Q - Compliance required ? 3B - FAD Rescinded
? 3C - Duplicate Docket Number
? 3D - Withdrawal
? 3E - Complaint Settled
? 3G - Other Letter Closure
? 5M - AJ issued procedural dismissal
? 5V - OFO affirmed AJ procedural dismissal
? 5W - OFO Reversed AJ procedural dismissal
? 5X - OFO modified AJ procedural dismissal
? 7N - Civil Action Filed Merits Settlement Codes ? 4A - Merits decision
? 4R - OFO found settlement breach
? 4S - OFO found no settlement breach
? 4E - Agency found settlement breach
? 4F - Agency found no settlement breach
? 4H - OFO affirmed Agency
? 4I - OFO reversed Agency
? 4J - OFO modified Agency (NOTE: if affirmed in part
and reversed in part, then (3L) Code required if at
least one issue is remanded)
? 3L - OFO remanded PART of the Agency's
merits decision (NOTE: If breach is
basis, use of 3L also requires 4I code)
? 3P - Adverse inference ? 5R - class complaint certified
? 5S - class complaint not certified (class requirements not met)
? 5T - class complaint not certified (procedural dismissal)
? 5U - class complaint certification remanded for additional discovery
? 4Q - Compliance required
Revised 10/25/11
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Fernando Matta USPS (PAC) 0120142152
OPEN CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken
CLOSED CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken
CLASS ACTION CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken
Thomas P. Mecherikunnel 10/21/14
Attorney Date
2
0120142152
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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