01991450_r
07-24-2001
James E. Fuccillo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James E. Fuccillo v. United States Postal Service
01991450
July 24, 2001
.
James E. Fuccillo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991450
Agency No. 4B-028-0085-98
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated November 6, 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. In his
complaint, complainant alleged that he was subjected to discrimination
in reprisal for prior protected activity when:
On June 6, 1998, he became aware that an inappropriate request from the
Manager, Human Resources resulted in a Postal Service investigation of
him in April/May 1997.
On June 17, 1998, his request for a copy of the Investigative Memorandum
from the Postal Inspection Service was denied.
On June 23, 1998, a Labor Relations Specialist settled a grievance with
wording which complainant claims was discriminatory towards him.
The agency dismissed claims 1 and 2 pursuant to EEOC Regulation 29
C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO Counselor contact.
The agency also dismissed claim 2 on the alternative grounds of failure
to state a claim. Finally, the agency dismissed claim 3 for failure to
state a claim.
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).
As an initial matter, we find that both claims 1 and 2 of the instant
complaint are more appropriately analyzed to determine if they state
a claim. Complainant has not demonstrated how the investigation or the
denial of his request for the Investigative Memorandum has affected a
term, condition, or privilege of his employment. The record indicates
that no disciplinary action was taken against complainant as a result
of the investigation. The record also indicates that complainant did
in fact receive a copy of the Investigative Memorandum in May 1997.
Complainant's June 12, 1997 request was for the Exhibits to the Memorandum
which were not attached to the document originally received by complainant
in May 1997.
Moreover, complainant's request regarding the Memorandum was denied
pursuant to the Privacy Act and the Freedom of Information Act (FOIA),
which is outside the purview of the EEOC. The Privacy Act, 5 U.S.C. �
552(g)(1), provides an exclusive statutory framework governing the
disclosure of identifiable information contained in federal systems of
records and jurisdiction rests exclusively in the United States District
Courts for matters brought under the provisions of the Privacy Act.
Bucci v. Department of Education, EEOC Request Nos. 05890289, 05890290,
05890291 (April 12, 1989).
In claim 3, complainant argues that a agreement pursuant to a grievance
filed by an agency employee contained language which was discriminatory
to him. The Commission finds that complainant fails to state a claim
pursuant to EEOC regulations. Specifically, complainant fails
to demonstrate that the language in question refers at all to complainant.
In addition, he fails to show how the language has harmed a term,
condition, or privilege of his employment.
The Commission concludes that the claims addressed herein, even
if proven to be true, would not indicate that complainant has been
subjected to harassment that was sufficiently severe or pervasive to
alter the conditions of employment. Moreover, the complaint does not
otherwise challenge an unlawful employment policy or practice. See Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
For the reasons stated herein, we find that the agency's decision
dismissing complainant's complaint was proper and is hereby 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 24, 2001
__________________
Date