01992783
04-11-2000
Eugene A. Barnard, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Eugene A. Barnard, )
Complainant, )
)
v. )
) Appeal No. 01992783
William J. Henderson, ) Agency No. 4-G-760-0316-98
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On February 22, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to his complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> The Commission accepts the appeal in accordance with 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
On August 14, 1998, complainant contacted the EEO office regarding
claims of discrimination based on national origin, physical disability,
and reprisal. Informal efforts to resolve complainant's concerns were
unsuccessful. On December 21, 1998, complainant filed a formal complaint.
The agency framed the claim as follows:
On August 1, 1998, complainant became aware of a Memorandum of
Understanding (MOU) between the American Postal Workers' Union and
the U.S. Postal Service dated July 6, 1998 which merged the clerk and
special delivery crafts, thereby causing complainant to become junior
in seniority to some special delivery messengers that were previously
junior to complainant.
The agency issued a FAD, dated January 20, 1999, dismissing the complaint
for untimely counselor contact and for failure to state a claim.
Specifically, the FAD stated that complainant did not contact the EEO
counselor until approximately four months after he was reassigned, well
beyond the forty-five day time limitation. Further, complainant's claim
regarding the MOU was a generalized grievance shared by a large class,
and therefore it failed to state a claim.
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).
Based on a review of the record, the Commission finds that complainant has
failed to show that he suffered an individual or unique harm as a result
of the agency's alleged merger of the clerk and special delivery crafts.
The alleged agency action would affect all clerk and special delivery
employees. The United States Supreme Court has held that a generalized
grievance shared by substantially all or a large class of individuals is
not sufficient to establish standing. See Warth v. Seldin, 422 U.S. 490
(1975). Therefore, we find that the alleged event does not render
complainant an �aggrieved� employee. The agency's decision to dismiss
the complaint for failure to state a claim was proper. Because of
our disposition we do not consider whether the complaint was properly
dismissed for untimely counselor contact.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
April 11, 2000
____________________________
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:
_______________ __________________________
Date Equal Employment Assistant
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.