01A62284
06-20-2006
Khristopher B. Oliver, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Khristopher B. Oliver,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A62284
Agency No. 1G787000206
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 6, 2006, 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 the instant complaint, filed on January 30, 2006, complainant claimed
that he was subjected to discrimination on the basis of reprisal for prior
protected EEO activity when:
on October 3, 2005, he was denied employment with the Postal Service
as a part-time Flexible Mail Processing Clerk.
In its February 6, 2006 decision, the agency dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Specifically, the agency found that the complainant failed to provide a
basis for the alleged discrimination, as there is no record of prior EEO
activity on the part of the complainant.
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 of reprisal, on the grounds that the complaint did not fall within
the purview of the EEO process. The January 30, 2006 complaint identified
the matter giving rise to the complaint as previous union activity. The
basis of reprisal was the only basis of discrimination identified by the
complainant, and there is no evidence that he engaged in EEO or any other
protected activity. When a complaint of reprisal fails to identify EEO or
other protected activity, the complaint is not within the purview of Title
VII and must be dismissed for failure to state a claim. See Bryant v.
Department of Justice, EEOC Request No. 05980273 (June 4, 1999).
Accordingly, the Commission finds that the complaint fails to state a claim
under the EEOC regulations, and the agency's final decision dismissing
complainant's complaint 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
June 20, 2006
__________________
Date