0120083814
06-24-2010
Keith E. Burrowes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Headquarters), Agency.
Keith E. Burrowes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120083814
Agency No. 6X-000-0025-08
DECISION
On August 29, 2008, Complainant filed a timely appeal with this Commission
from the Agency's decision dated July 30, 2008, dismissing his formal
Equal Employment Opportunity (EEO) 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission AFFIRMS the Agency's dismissal
of Complainant's formal EEO complaint.
ISSUE PRESENTED
Whether the Agency properly dismissed Complainant's formal EEO complaint
alleging discrimination on the bases of race (Black), color (Black),
sex (Male), national origin (Jamaican), age (61), and in reprisal
for engaging in prior EEO activity, when on February 25, 2008 he was
involuntarily reassigned, for failure to state a claim in accordance
with 29 C.F.R. � 1614.107(a)(1).
BACKGROUND
At the time of events giving rise to this complaint, Complainant
was employed as an Equal Employment Opportunity Alternative Dispute
Resolution Specialist (EEO ADR Specialist) at the agency's EEO Compliance
and Appeals Office, in Dallas, Texas. On February 5 and 28, 2008,
Complainant contacted an EEO Counselor, and on May 30, 2008 he filed a
formal complaint alleging that he was discriminated against as set forth
in the statement, "Issue Presented" above.
The record reflects that Complainant's manager testified that he conducted
a conference call on February 5, 2008 with Complainant, and the Acting
Manager of Complainant's facility. The purpose of this call was to
inform Complainant that, as a result of some email exchanges between
Complainant and several Dallas management officials dated February 1
through 4, 2008: (1) his email privileges were suspended immediately;
(2) he was not to have any further communication with the managers in
the Dallas District, effective immediately; and (3) the Acting Manager
would be in touch with him regarding a change in his case assignments.
Report of Investigation (ROI), Affidavit (Aff.) B. Complainant was
informed that the email messages he sent were deemed disrespectful,
inappropriate, unprofessional, rude, out of line, and non-neutral
by management. Id. The change in case assignments would involve
reassigning any cases currently assigned to Complainant. Id.
By February 25, 2008, Complainant's email privileges were officially
suspended and any cases assigned to him from the Dallas district had
been reassigned. ROI, Aff. B. No additional changes to Complainant's
position were made. Id. Complainant's email privileges were restored
to him on June 18, 2008. Id.
In a decision dated July 30, 2008, the Agency dismissed Complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. Specifically, the Agency found that Complainant could not be
properly considered a "person aggrieved" unless he could demonstrate that
he suffered a direct and personal deprivation at the hands of the agency.
Final Agency Decision, at Page 2.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he is a "person aggrieved."
Complainant states that in October of 2007, he was bestowed with the
honor of "Top Counselor," and that he would have attained this honor in
the subsequent fiscal year but for the Agency's actions of reassigning
his caseload. Complainant's Appeal, at Page 1. Complainant contends
that cases which were assigned to him were reassigned to other EEO ADR
Specialists for credit, limiting his opportunity to grow and contribute
to the Agency for approximately thirty (30) days. Id. Additionally,
Complainant also states that his EEO complainant was not thoroughly
investigated as prescribed in 29 C.F.R. � 1614.108(b). Id. at Page 2.
The Agency counters, stating that Complainant has offered no further
evidence to warrant the Agency's rescission of its decision to dismiss his
complaint. Agency's Response to Complainant's Appeal Brief, at Page 1.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. 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. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). The evidence in the
record establishes that Complainant's case load was adjusted and his
email privileges were suspended for four months, following the agency's
determination of misconduct on his part. The record does not establish
that these disciplinary actions by the Agency in any way harmed or cause
Complainant a loss with respect to any term, condition, or privilege of
employment. The record does not reflect that the disciplinary actions in
any way affected Complainant's title (EEO ADR Specialist), pay, benefits,
location, or duties. In light of these facts, the Commission finds that
the Complainant failed to state a claim under the EEOC regulations.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 24, 2010
Date
2
0120083814
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120083814