01992966
11-27-2000
Michael W. Clark, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael W. Clark v. United States Postal Service
01992966
November 27, 2000
.
Michael W. Clark,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01992966
Agency No. 4D-270-0135-98
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to 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.<1> The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
Believing he was the victim of discrimination based on reprisal,
complainant contacted the EEO office. Specifically, complainant claimed
that in May 1998, he sent information to the District Manager on Fair
Labor Standards Act (FLSA) violations. On June 23, 1998, the District
Manager responded, finding that complainant's claims were unsupported.
Complainant claimed that the District Manager is trying to cover
up the problems and shift the blame. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, on October 10,
1998, complainant filed a formal complaint. The agency framed the claim
as follows:
On June 23, 1998, complainant received a letter from the District
Manager advising that the FLSA violations alleged by complainant were
not supported by the evidence.
On January 27, 1999, the agency issued a decision dismissing the complaint
for failure to state a claim. The agency determined that complainant
failed to show how the District Manager's letter resulted in a harm or
loss to a term, condition, or privilege of his employment.
On appeal, complainant argues that he was aggrieved. He contends that
he reported infractions by other managers that were similar to claims
leveled at him in an effort to have him removed.
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. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). 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. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Here, complainant contends that he was discriminated against when
the District Manager found that the alleged FLSA violations raised by
complaint were not supported by evidence. We agree with the agency that
complainant failed to show how the District Manager's response caused
him a harm or loss with respect to a term, condition or privilege of
his employment for which the Commission can provide a remedy. We note
that on appeal complainant refers to his removal from agency employment;
however, complainant did not raise the issue of his removal issue during
EEO counseling or in his formal complaint. If complainant wishes to
pursue the removal matter through the EEO process, he is advised to
contact an EEO Counselor thereon.
Accordingly, the agency's decision to dismiss the complaint for failure
to state a claim was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 27, 2000
__________________
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.