01a42451
01-13-2005
Frank A. Barnes, et al, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frank A. Barnes, et al v. United States Postal Service
01A42451
January 13, 2005
.
Frank A. Barnes, et al,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42451
Agency No. 1F-924-0015-03
DECISION
Upon review, the Commission finds that the instant complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim.
On December 26, 2002, the captioned complainant contacted an EEO Counselor
and claimed that he and three other supervisors were discriminated
against in reprisal for their affiliation with the National Alliance of
Postal and Federal Employees (hereinafter referred to as �NAPFE�) when
they received a �Met Objectives/Expectations� rating in their Fiscal
Year 2002 Merit Rating.<1>
The record contains copies of the EEO Dispute Resolution Specialists's
Inquiry Report for complainant and the three other supervisors.
Each report identifies the basis for discrimination as: �retaliation
Affiliation with NAPFE.�
Informal efforts to resolve the matter were unsuccessful and on
October 20, 2003, the captioned complainant, filed a formal complaint as
representative of the other three supervisors and on his behalf. Therein,
the sole basis identified was reprisal for affiliation with NAPFE.
In its final decision, dated January 14, 2004, the agency determined
that the instant complaint was comprised of the following claim:
On or about November 8, 2002, complainants received their final Fiscal
Year (FY) 2002 Merit Performance Evaluations with a rating of �Met
Objectives/Expectations.� Complainants contend that these evaluations
were not given in accordance with Management Instruction EL- 410-2002-1,
adversely affecting their base salary range and earning capabilities in
FY 2003.
The agency dismissed the complaint for failure to state a claim. The
agency stated that in their informal and formal complaints, complainants
identified the basis of the alleged discrimination as retaliation due
to their affiliation with an employee organization, National Alliance
of Postal and Federal Employees (NAPFE) which is not a basis covered
under Title VII.
The Commission determines that the agency properly found that reprisal
due to affiliation with NAPFE is not a basis covered under Title VII
or the EEO regulations, because complainant has not alleged that he has
opposed any practice made unlawful under Title VII or the EEO regulations,
or that he has participated in any stage of administrative and judicial
proceedings under these statutes.
As the sole basis raised in the instant complaint is not a basis covered
under Title VII or the EEO regulations, the Commission determines that
the agency's final decision dismissing the 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
January 13, 2005
__________________
Date
1The three other complainants identified are:
Teresa Jackson, Paul Wheeler, and Horace Porch.