01a61624
07-21-2006
Donald R. Weber, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donald R. Weber,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61624
Agency No. 1A-111-0063-05
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated December 7, 2005, dismissing his 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. The Commission accepts the appeal in accordance with 29 C.F.R. �
1614.405.
On November 15, 2005, complainant filed a formal complaint, claiming that
he was the victim of unlawful employment discrimination in reprisal for
prior protected activity.
On December 7, 2005, the agency issued the instant final decision.
Therein, the agency determined that complainant's complaint was comprised
of the following claim:
On July 29, 2005, complainant spoke to Tour 1 Supervisor regarding his
belief that his work assignment as in punishment because he asked for
job security.
The agency dismissed the formal complaint for failure to state a claim.
The agency found that complainant did not articulate how he suffered a
harm or loss regarding a term, condition or privilege of his employment.
On appeal, complainant argues that "I am worried about my job. I am
worried about my welfare." Complainant asserts that he wanted to
be removed from his assigned areas, which the agency failed to do.
The Commission notes that complainant also states that he was "passed
on the late overtime list", but notes that "that part" was raised in a
separate complaint.
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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
Based on a review of the record, the Commission agrees that the complaint
fails to state a claim. In his formal complaint, complainant claimed
that he has been "belittled and disrespected as my requests have been
ignored." Complainant later notes, however, that he was moved to the
third floor after he went "over T-1 Management." The remainder of the
complaint concerns overtime. However, as noted above, a fair reading
of complainant's arguments on appeal reflect that complainant indicates
that the issue of overtime is the subject of a separate complaint.
This issue will, therefore, not be further addressed by the Commission.
The agency's decision to dismiss the complaint as defined by the agency
in its final decision, for failure to state a claim, is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 21, 2006
__________________
Date
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01A61624
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
01A61624