01A43296_r
08-16-2004
Martin S. Montoya, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Martin S. Montoya v. United States Postal Service
01A43296
August 16, 2004
.
Martin S. Montoya,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43296
Agency No. 4G-870-0171-03
DECISION
Complainant filed an appeal with this Commission from a March 11, 2004
agency decision dismissing his complaint for failure to state a claim,
pursuant to 29 C.F.R. � 1614.107(a)(1).
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (Hispanic), sex (male), and reprisal
for prior EEO activity when: (1) on August 1, 2003, complainant was
given a fact finding interview regarding an honest mistake made by
complainant in filling out the PS Form 4240 time sheet and complainant
was not provided with a copy of the fact finding interview; and (2)
complainant was issued a letter of warning which was subsequently reduced
to an official discussion in the grievance process.
The Commission finds that complainant was not aggrieved by either incident
because there is no harm to complainant from a fact finding interview
and because the letter of warning was reduced to an official discussion
prior to complainant commencing the EEO process. The Commission has held
that official discussions alone do not render an employee aggrieved.
See Gafforino v. USPS, EEOC Request No. 05910847 (December 30, 1991).
Furthermore, the complaint does not allege actions sufficiently severe
or pervasive so as to state a claim of harassment.
Accordingly, the agency decision 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
August 16, 2004
__________________
Date