01991456
12-28-2000
Glenn P. Masi, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Glenn P. Masi v. United States Postal Service
01991456
December 28, 2000
.
Glenn P. Masi,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991456
Agency No. 4A-105-0118-98
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated November 9, 1998, dismissing his 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 agency
characterized complainant's August 12, 1998 complaint as alleging that
he was subjected to discrimination on the basis of retaliation for prior
EEO activity when:
On May 25, 1998 (Memorial Day) and July 4, 1998 (Independence Day),
complainant was scheduled to work, while others were off;
On June 12, 1998, complainant was issued a Notice of Suspension - Seven
Calendar Days, effective June 27, 1998, charging complainant with Failure
to Comply with Instructions for an incident that occurred on June 4,
1998;
On June 26, 1998, PS Form 3971, Notification of Absence, was signed and
approved 20 days after complainant's June 6, 1998 submittal;
On unspecified dates another PTF carrier worked 61-1/2 hours, while
complainant worked only 46 hours; and
On an unspecified date, complainant was not called in on his non-scheduled
day to work the hold down.
The agency's decision dismissed complainant's claims for failure to state
a claim. Specifically, the agency determined that, with regard to his
claim of retaliation, complainant had no record of any prior EEO activity
and that his formal complaint did not specify the prior EEO activity upon
which the claimed discrimination was based. The agency also noted that in
his informal complaint, complainant described the claimed discrimination
as, �retaliation - 7 day suspension due to grievance filed (prior EEO
pamphlet received, not completed, but another violation occurred).�
The record indicates that, as reflected in the EEO Counselor's report
and the formal complaint, the sole basis of discrimination claimed
by complainant was retaliation. We note that, on appeal, complainant
also asserts that the attempt to suspend him (referenced in claim (2)),
�was in retaliation for a grievance . . . initiated by me.�
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 under 29 C.F.R. � 1614.103. EEOC Regulation 29 C.F.R. �
1614.103(a) provides that individual and class complaints of employment
discrimination and retaliation prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is at
least forty years of age), the Rehabilitation Act (discrimination on the
basis of disability), or the Equal Pay Act (sex-based wage discrimination)
shall be processed in accordance with this part. Additionally, EEOC
Regulation 29 C.F.R. � 1614.101(b) provides that no person shall be
subject to retaliation for opposing any practice made unlawful by Title
VII of the Civil Rights Act (Title VII) (42 U.S.C. � 2000e et seq.), the
Equal Pay Act (29 U.S.C. � 206(d)) or the Rehabilitation Act (29 U.S.C. �
791 et seq.) or for participating in any stage of administrative or
judicial proceedings under these statutes. The Commission has also held
that participation in the grievance process may be a protected activity,
if claims of discrimination are raised therein. See Shively v. Department
of the Army, EEOC Request No. 05960481 (December 31, 1996).
Upon review, we find that the agency properly dismissed complainant's
claims. The record indicates that in both the EEO Counselor's report and
his formal complaint, complainant's only claimed basis for discrimination
is retaliation. There is no evidence in the record, however, of any
prior EEO activity by complainant, nor does he claim any on appeal.
Although complainant does specify that claim (2) in his complaint was
in retaliation for a filed grievance, he does not claim or show that
a discrimination claim was raised in that grievance. Consequently,
as complainant has failed to identify any prior protected activity for
which the agency has retaliated, or to otherwise identify another basis
of discrimination, the agency correctly dismissed his complaint for
failure to state a claim.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 28, 2000
__________________
Date