0120063873
12-06-2006
Robert L. Perry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200638731
Agency No. 1C-441-0100-05
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 5, 2006, dismissing his formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
In the instant complaint, filed on May 29, 2006, complainant claimed that
he was the victim of unlawful employment discrimination on the bases of
race, sex, age, and in reprisal for prior EEO activity when:
on an unspecified date, other employees were sought after for training
in higher level positions while management ignored his thirty years with
the service.
As a remedy, complainant request that the agency conduct a "full scale
investigation on the past & present information provided."
In its June 5, 2006 final decision, the agency dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The agency found that complainant failed to show he suffered a personal
loss or harm to a term, condition or privilege of his employment.
Specifically, the agency found that complainant did not provide evidence
reflecting that he requested a higher level position or that he was denied
a request for a higher level position. The agency found further that
complainant neither provides information nor even complains that he was
not provided with the same opportunity.
The agency properly dismissed the complaint for failure to state a claim.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Complainant has failed to establish how he suffered a personal
loss or harm to a term, condition or privilege of his employment when
other employees were sought after for training in higher level positions.
As noted by the agency, there is no evidence that complainant either
requested or was denied training in higher level position. Moreover,
a review of the record reflects that the matters in question are
insufficient to support a claim of harassment. See Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally,
the alleged agency actions were not of a type reasonably likely to deter
complainant or others from engaging in protected activity.
Accordingly, the agency's final decision dismissing the instant complaint
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
December 6, 2006
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120063873
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063873
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