James Latham, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 12, 2000
01995881 (E.E.O.C. Jul. 12, 2000)

01995881

07-12-2000

James Latham, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


James Latham v. United States Postal Service

01995881

07-12-00

James Latham, )

Complainant, )

)

v. ) Appeal No. 01995881

) Agency No. 4G760019899

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

____________________________________)

DECISION

INTRODUCTION

Complainant filed a timely appeal with this Commission from the agency's

final decision dated June 15, 1999, dismissing his complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. Section 2000e et seq. and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 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).

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed complainant's

complaint for failure to state a claim.

BACKGROUND

After timely contacting an EEO Counselor, complainant filed a

formal complaint on May 13, 1999, alleging that the agency's EEO

Counselor/Investigator denied his request for �documentation� in violation

of Title VII. Specifically, complainant alleged in his complaint

that he was subjected to discrimination of the basis of sex (male), age

(DOB: 2/21/52), and reprisal (prior EEO activity) when: on April 30,

1999, while acting as an EEO representative for another employee, he was

told by the agency's EEO Counselor/Investigator assigned to that case

that he had no authority to request documentation as a representative.

Complainant further alleged that the EEO Counselor/Investigator told

him to file an EEO complaint if he was not satisfied with his answer.

In a final agency decision, the agency dismissed complainant's claim

pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1) for failing to

state an actionable claim.

ANALYSIS AND FINDINGS

The regulation set forth at 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 21, 1994).

In the present case, complainant fails to demonstrate how he was aggrieved

by the EEO Counselor/Investigator with respect to a term, condition, or

privilege of his employment when he was denied certain documentation.

The Commission notes that the proper forum for obtaining agency

documents excluded from an investigation file is a hearing before an EEOC

Administrative Judge. Thus, we find that complainant failed to state an

actionable claim and that the agency properly dismissed the appeal.<2>

CONCLUSION

On appeal, no persuasive arguments or evidence have been presented

regarding whether complainant has stated a claim, i.e., to show that

complainant was injured by the incident raised. Accordingly, the agency's

final decision dismissing complainant's complaint is AFFIRMED.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

07-12-00 ________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On 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.

2 Moreover, complainant incorrectly cites in his appeal statement EEOC

Regulation 29 C.F.R. � 1614.605, pertaining to representation and official

time, as grounds for the agency to release all requested documentation

to EEO representatives.