01A40932_r
04-14-2004
Robert McGhee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert McGhee v. United States Postal Service
01A40932
April 14, 2004
.
Robert McGhee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40932
Agency No. 4J-606-0246-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 3, 2003, dismissing 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race, age, and reprisal
for prior EEO activity when:
On June 23, 2003, a supervisor (S1) told complainant he had to fill out
a new Form CA-2 for an injury that occurred May 9, 2003;
On June 23, 2003, another supervisor (S2) told complainant he had to
fill out and sign a new Form CA-2 for an injury that occurred May 9, 2003;
Complainant has been denied a free parking place;
S2 denied complainant the use of a 7-ton truck.
S2 changed complainant's starting time and then changed it back again.<1>
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim, finding that complainant was not aggrieved
by any of the alleged discriminatory incidents. Moreover, the agency
dismissed claims (3) and (4) pursuant to 29 C.F.R. � 1614.107(a)(1)
on the grounds these claims state claims identical to claims raised in
a prior complaint.
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).
We concur with the agency that complainant is not aggrieved as a
result of being asked to complete Form CA-2. Nothing in the file
indicates complainant lost any wages, received any discipline or
otherwise suffered any injury as a result of his supervisors' requests.
Moreover, we find the record shows that complainant's starting time
(claims (5)) was changed back immediately upon complainant's contact
with the agency's administrative staff, who notified S2 that complainant
needed his original starting time in order to accommodate his therapy
appointments. We therefore find that complainant was not aggrieved by
the incident described herein as claim (5). Accordingly, the agency
properly dismissed claims (1), (2) and (5).
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
The record shows that in agency case number 4J-606-0073-03, complainant
alleged the same claims as those contained in claims (3) and (4) of the
instant complaint regarding free parking spaces and the replacement of
a 7-ton truck with a 2-ton truck for complainant's use. We therefore
find claims (3) and (4) were properly dismissed.
Accordingly, we AFFIRM the agency's dismissal of the complaint pursuant
to 29 C.F.R. � 1614.107(a)(1).
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
April 14, 2004
__________________
Date
1The agency combined this claim (5) with claim
(2). We find they are separate claims.