Michael W. Clark, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 27, 2000
01992966 (E.E.O.C. Nov. 27, 2000)

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.