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.