Howard K. Gross, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 18, 2003
01A22048_r (E.E.O.C. Mar. 18, 2003)

01A22048_r

03-18-2003

Howard K. Gross, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Howard K. Gross v. United States Postal Service

01A22048

March 18, 2003

.

Howard K. Gross,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A22048

Agency No. 4K-200-0140-99

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated January 9, 2002, 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 record reveals that, at all relevant times, complainant was a Letter

Carrier with the agency's Rockville Post Office located in Rockville,

Maryland. On April 4, 1999, complainant initiated contact with an EEO

Counselor. Informal efforts to resolve his concerns were unsuccessful.

On October 18, 2001, complainant filed a formal EEO complaint, alleging

that he was the victim of unlawful employment discrimination in reprisal

for prior EEO activity when:

(1) on July 12, 1996, he was issued a 14-day suspension;

(2) on August 30, 1996, there was a controversy regarding his OWCP claim;

(3) on September 18, 1996, he was issued a Notice of 14-day Suspension;

(4) on October 7, 1996, he was issued a 14 Notice of 14-day Suspension;

(5) on November 19, 1996, he was issued a Notice of Removal;

(6) on January 24, 1997, he was issued a Notice of Removal;

(7) on September 18, 1997, he was issued of Notice of Emergency

Suspension;

(8) on November 3, 1997, he was issued a Notice of Removal;

(9) on November 3, 1997, his driving privileges were suspended for

59 days;

(10) on December 14, 1998, he was issued a Notice of Removal and

disallowed pay;

(11) on June 1, 1998, he was issued a Notice of 14-day suspension;

(12) on June 3, 1998, he was instructed to use a �porta-potty;�

(13) on July 15, 1998, he was instructed about EAP appointment;

(14) on July 23, 1998, he was issued a Notice of Removal;

(15) on February 6, 1999, he was denied FMLA request;

(16) on February 18, 1999, he was issued a Notice of Removal; and

(17) on February 10, 1999, he was harassed at his residence from the

Rockville Post Office Personnel office (Silver Spring Post Office).

On January 9, 2002, the agency issued a final decision dismissing

claims (1) - (7), and claims (10) - (16) pursuant to 29 C.F.R. �

1614.107(a)(1) for stating the same claims raised in his previous

complaints. Specifically, the agency stated that complainant raised

the same matters in a prior complaint, Agency No. 4K-200-0068-01, that

was pending before, or was decided by, the agency or the Commission.

The agency also dismissed claims (1) - (15) pursuant to 29 C.F.R. �

1614.107(a)(2) for untimely EEO Counselor contact. Specifically, the

agency determined that complainant's April 4, 1999 EEO Counselor contact

was beyond the forty-five-day time limitation period with respect to

these claims.

Finally, the agency dismissed claim (17) pursuant to 29 C.F.R. �

1614.107(a)(1) for failure to state a claim. The agency found that

complainant failed to show how the alleged incident resulted in a harm

or loss regarding a term, condition, or privilege of his employment.

The agency noted that complainant did not indicate what particular

actions were taken against him that would warrant a finding of harassment.

The record indicates that in the prior complaint referenced by the

agency in dismissing claims (1) - (7) and claims (10) - (16), (Agency

No. 4K-200-0068-01), complainant requested a hearing before an EEOC

Administrative Judge (AJ). The AJ docketed complainant's case as

Hearing No. 120-A2-1064X. The record contains an Order for Agency

No. 4K-200-0068-01, issued by the AJ on March 20, 2002. Therein, the

AJ lists 24 issues to be investigated.

Claims (1) - (6) and (11) - (16)

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that

the agency shall dismiss a complaint that states the same claim that is

pending before or has been decided by the agency or Commission.

Upon review, we find that the agency properly dismissed claims (1) - (6)

and (11) - (16) for stating the same claims raised in a prior complaint.

The AJ's March 20, 2002 Order in Agency No. 4K-200-0068-01, referenced

above, identifies claims to be investigated that are identical to those

raised in claims (1) - (6) and (11) - (16). The agency's dismissal of

the instant claims for raising the same matters that were raised in a

prior complaint was proper and is AFFIRMED.

Because we affirm the agency's decision to dismiss the above referenced

claims for the reason stated herein, we find it unnecessary to address the

agency's alternative dismissal grounds for claims (1) - (6), and claims

(11) - (15) (untimely EEO Counselor contact).

Claims (7) - (10)

The agency dismissed these claims on the grounds that complainant did not

timely contact an EEO Counselor. The record reflects that complainant

initiated EEO Counselor contact in April 1999, more than forty-five

days after the alleged discriminatory events identified in claims (7) -

(10) purportedly occurred. Complainant has failed to present adequate

justification pursuant to 29 C.F.R. �1614.105(a)(2), for extending the

limitation period beyond forty-five days. Accordingly, the agency's

decision to dismiss claims (7) - 10) failure to initiate contact with

an EEO Counselor in a timely fashion was proper and is AFFIRMED.

Because we affirm the agency's dismissal of claims (7) - (10) for the

reason stated herein, we find it unnecessary to address the agency's

alternative dismissal grounds regarding some of these claims.

Claim (17)

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. 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 21, 1994).

Based on a review of the record, the Commission finds that claim (17)

was properly dismissed for failure to state a claim. 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. Therefore,

the agency's decision to dismiss claim (17) for failure to state a claim

was proper and is AFFIRMED.

Accordingly, the agency's dismissal of claims (1) - (17) 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

March 18, 2003

__________________

Date