Michael L. Hamilton, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 26, 2000
01a01682 (E.E.O.C. May. 26, 2000)

01a01682

05-26-2000

Michael L. Hamilton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Michael L. Hamilton v. United States Postal Service

01A01682

May 26, 2000

Michael L. Hamilton, )

Complainant, )

)

v. ) Appeal No. 01A01682

) Agency No. 4-D-290-0120-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's November 30, 1999 decision

dismissing the complaint for failure to state a claim and because it

raises the same claim that is pending before or has been decided by

the agency or Commission, is proper pursuant to the provisions of 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.107(a)(1)).<1>

The record shows that in the instant complaint, filed on October 20,

1999, Complainant claimed that he had been discriminated against on

the basis of reprisal when: (1) on September 4, 1999, several employees

informed him that during a meeting, the station manager said he disliked

Complainant and did not respect him because of the frivolous grievances

Complainant filed and because of Complainant's attempts to get rid of

him; and, (2) on September 14, 1999, Complainant was issued a notice of

emergency suspension and a letter of removal.

The agency issued a final decision dismissing claim (1) for failure

to state a claim. Claim (2) was dismissed on the grounds that it

had already been raised in Agency Case No. 4-D-290-0004-00, filed by

Complainant on November 3, 1999, and accepted for investigation by the

agency on November 30, 1999.

The Commission has consistently held that a remark or comment

unaccompanied by any concrete effect does not render a complainant

aggrieved. Fuller v. USPS, EEOC Request No. 05910324 (May 2, 1991).

Accordingly, we find that claim (1) was properly dismissed on the basis

of failure to state a claim.

A review of the record shows that on October 1, 1999, Complainant filed

Agency Case No. 4-D-290-0004-00. In said case, Complainant raised the

issues of the notice of removal and his placement in emergency suspension

on September 14, 1999. Accordingly, the agency properly dismissed claim

(2) on the grounds that it raised the same matter that was raised in a

rpeviously filed EEO complaint.

In conclusion, the final agency decision is hereby 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:

May 26, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

____________ _________________________________

DATE EQUAL EMPLOYMENT ASSISTANT

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.