01a45866
12-06-2004
John D. Metz v. United States Postal Service
01A45866
.
John D. Metz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45866
Agency No. 4G-870-0039-04
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
In a formal complaint filed on March 30, 2004, complainant claimed
that he was subjected to discrimination on the bases of age and in
reprisal for prior protected activity when on December 13, 2003, he was
threatened with employment termination; and he was denied official time
as a representative.
On July 28, 2004, the agency issued a final decision dismissing the
instant complaint 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).
Here, complainant claimed that a manager threatened him with employment
termination. However, the record contains no evidence reflecting
any concrete agency action. Therefore, we agree with the agency that
complainant has failed to show a harm or loss to a term, condition or
privilege of employment as a consequence of the manager's threatening
remark.
Regarding complainant's claim that he was denied official time to
represent his co-workers as a Union Steward. The Commission has
repeatedly found that an agency is required to address EEO complaints
only when filed by an �aggrieved� person, that is, one who has suffered
direct, personal deprivation at the hands of the employer. See Paula
Quinones v. Department of Defense, EEOC Request No. 05920051 (March 12,
1992). The employer's act must have caused some concrete effect on the
complainant's employment status. Complainant's representation of other
employees through an employee resource group is not sufficiently tied
to his employment status with the agency to state a claim. See Morman
v. Department of the Air Force, EEOC Request No. 01964629 (March 17,
1997). Therefore, we do not find that the alleged incident rendered
complainant an �aggrieved� employee.
Finally, a review of the record reflects that the matters in question are
insufficient to support a claim of harassment. See Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the agency's decision to dismiss the complaint 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
December 6, 2004
__________________
Date