0120122485
10-19-2012
Michael S. Wiser, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Michael S. Wiser,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120122485
Agency No. 4G-720-0030-11
DECISION
Complainant timely filed an appeal from the Agency's final decision concerning his equal employment opportunity (EEO) complaint alleging 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.1 The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer Service, EAS-17, at the Agency's Russellville Post Office in Russellville, Arizona. On April 11, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), and color (White) when:
1. on December 7, 2011, the Postmaster made threats that Complainant "would pay" for speaking to the manager of post office operations about the Postmaster;
2. Complainant had to work long hours to perform the Postmaster's duties;
3. Complainant received two absence inquiry letters; one dated March 11, 2011, and the other dated April 5, 2011;
4. Complainant was scheduled for an investigative interview on March 23, 2011; and
5. Complainant was not paid while he was out on leave.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but the AJ dismissed the hearing request on the grounds that Complainant failed to comply with an Acknowledgment and Order and a Scheduling Order. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). Therein, the Agency dismissed Complainant's formal complaint for failure to state a claim and alternatively addressed the complaint on the merits, finding Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R.
� 1614.107(a)(1), for failure to state a claim. The Agency noted that, although Complainant's complaint alleged race, color, and sex discrimination, Complainant averred in his affidavit that he felt that the Agency was not motivated by his race, color, and sex in its actions against him. The Agency noted that Complainant averred instead that he believed that the Agency's actions against him were payback for his reporting of the Postmaster's abuse of leave to management. The Agency noted that Complainant answered "no" when the Investigator asked Complainant if he believed the Agency's actions were motivated by his protected classes.
ANALYSIS AND FINDINGS
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. To state a claim, complainant must allege a present harm, as a result of discrimination, as to the following bases: race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. � 1614.103 (a).
Here, Complainant in his affidavit unequivocally averred that he believed that the Agency's actions were not based on race, sex, and color. Rather, Complainant averred that he believed that the Agency's actions for each claim were "payback" for reporting the Postmaster's abuse of leave to management. We note that what Complainant alleges on its face appears to be a claim of whistle-blower retaliation, which is not a basis of discrimination within the Commission's purview. We therefore find that the Agency properly dismissed Complainant's complaint for failure to state a claim because Complainant failed to allege a protected basis of discrimination under the statues enforced by the Commission.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
October 19, 2012
Date
1 The Agency on appeal alleges that Complainant's appeal was untimely filed; however, the "Track/Confirm" printout provided by the Agency only indicates that delivery took place on March 31, 2012, in "Havana, AR 72842." Without further details of the address, we cannot determine that Complainant received the appeal on that date.
2 Because we affirm the Agency's dismissal of Complainant's complaint, we will not address its alternative determination finding no discrimination on the merits.
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0120122485
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122485