01992935
02-04-2000
Earl Andorf, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Earl Andorf, )
Complainant, )
)
v. ) Appeal No. 01992935
) Agency No. 1F-953�0004-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
On February 24, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to his complaint
of unlawful employment discrimination.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
On January 7, 1999, complainant filed a formal complaint alleging
that he was the victim of unlawful employment discrimination when, on
October 29, 1998, the agency returned his suggestion (idea proposal)
to him unsigned, undated, and unadopted. Complainant claimed that the
suggestion was not given proper consideration and that the agency's
suggestion program was flawed. He did not cite a basis for the alleged
discrimination although the agency requested that he do so. Instead,
complainant indicated that the significant factor was that the agency
treated him different from its other employees and that it is unnecessary
for such treatment to fit under a basis of EEO discrimination.
The agency issued a final agency decision (FAD) on February 5, 1999
dismissing complainant's complaint for failure to state a claim.
This appeal followed.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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 22,
1994).
Complainant filed a complaint alleging employment discrimination. In it
he failed to provide a basis for the agency's alleged discrimination
although it requested this information from him on more than one occasion.
Complainant indicated the fact that he was treated differently alone
warranted his complaint. He further stated that it was not necessary for
the treatment to fit under a basis of discrimination. The Commission
has authority to prohibit discrimination in employment based on race,
color, religion, sex, national origin, age, or handicap and to prevent
retaliation for opposing any practice made unlawful by Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.; the Equal Pay Act, as amended, 29 U.S.C. 206(d); and Section
501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
See 29 C.F.R. � 1614.101; EEOC Management Directive (MD) 110, as revised,
November 9, 1999. Consequently, complainant did not identify a basis
over which the Commission has jurisdiction. Accordingly, the agency's
decision to dismiss complainant's complaint is affirmed.
CONCLUSION
It is the decision of the Commission to AFFIRM the agency's dismissal
of complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Feb. 4, 2000
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.