Robert L. Perry, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 6, 2006
0120063873 (E.E.O.C. Dec. 6, 2006)

0120063873

12-06-2006

Robert L. Perry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


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

3

0120063873

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0120063873