01a53090
07-07-2005
Ellis Williams , Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ellis Williams v. United States Postal Service
01A53090
July 7, 2005
.
Ellis Williams ,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53090
Agency No. 1C-443-0005-05
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
In a formal complaint dated February 22, 2005, complainant claimed that
he was subjected to discrimination on the bases of race, sex, color,
and in reprisal for prior EEO activity.
On March 1, 2005, the agency issued the instant final decision. Therein,
the agency determined that complainant's complaint was comprised of the
following claim:
On January 3, 2005, temporary bid assignment #157 was awarded to a
co-worker who had submitted her bid late. Complainant was subsequently
awarded the bid, only after he advised management that he had been the
only bidder on temporary assignment #157 at the close of the contractually
allotted time frame for bidding the position.
The agency dismissed the complaint for failure to state a claim.
On appeal, complainant argues that the agency improperly defined the
formal complaint. Complainant specifically asserts that the essence of
his complaint is that an agency official, who he had named as an alleged
discriminatory party in a prior complaint, �tried his best� to deny
complainant the position that is the subject of the instant complaint,
even though complainant was the successful bidder. Complainant argues
that the agency official's actions indicate that the official is concerned
about complainant's involvement in the EEO complaint process, and that
he intends to remind complainant of his displeasure.
Complainant also notes, for the first time on appeal, that while in
the temporary bid assignment identified in the formal complaint, he is
being given more duties and functions that make it difficult for him to
perform his job.
In response, the agency argues that complainant's complaint was properly
defined, and properly dismissed for failure to state a claim. The agency
also argues that complainant is attempting to raise new issues on appeal
(regarding being given more duties and functions in the temporary
position).
First, the Commission determines that the complaint was properly defined
by the agency in its final decision. Second, the Commission determines
that in the instant complaint, complainant failed to show that he suffered
harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Finally, the Commission
notes that on appeal, complainant first raises a claim regarding the
purported increase in his duties and functions when given the temporary
assignment identified in the formal complaint. It is inappropriate for
the Commission to address this matter, as it was first raised on appeal.
Accordingly, the agency's final decision dismissing complainant's
complaint for failure to state a claim was proper and 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 7 2005
__________________
Date