01A33846_r
09-13-2004
Ronald I. Nance, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald I. Nance v. United States Postal Service
01A33846
September 13, 2004
.
Ronald I. Nance,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33846
Agency No. 1C-272-0020-03
DECISION
Complainant filed an appeal with this Commission from a May 21, 2003
agency decision dismissing his complaint for failure to state a claim
and for alleging dissatisfaction with the processing of a previously
filed complaint.
The record reveals that complainant sought EEO counseling and thereafter
filed a formal complaint alleging therein that the agency was not in
compliance with the Commission's decision in Ronald I. Nance v. United
States Postal Service, EEOC Appeal Nos. 01A10548, 01A15028, 01A11707
(February 5, 2003) (hereinafter, Nance #1). Specifically, complainant
alleged that the agency improperly added language to the notice which the
Commission ordered in Nance #1 that the agency post. Complainant asserted
that by adding language not ordered by the Commission, the agency altered
the notice and changed the meaning and effectiveness of the notice.
In the agency decision, the agency noted that complainant had not filed
a petition for enforcement pursuant to 29 C.F.R. � 1614.503(a) regarding
Nance #1.
The record contains a copy of the posting notice that complainant alleges
was posted by the agency. Appearing at the top of the posting notice
dated March 20, 2003, submitted by complainant is the following: �NOTICE:
The EEOC posting below involves a complaint from 1999. None of the
Managers cited are still working at the Greensboro BMC.� This language
does not appear on the Commission's required posting notice in Nance #1.
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. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). The Commission finds that the
complaint fails to state a claim because complainant has failed to
show how he suffered a personal harm or loss to a term, condition, or
privilege of his employment as a result of the alleged notice posted by
the agency. This matter is more appropriately adjudicated as a petition
for enforcement pursuant to 29 C.F.R. � 1614.503(a). The Commission
has opened a new docket number, EEOC Petition No. 04A40042, in order
to adjudicate complainant's claim that the agency has not complied with
the Commission's Order in Nance #1.
Accordingly, the agency's dismissal of the 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
September 13, 2004
__________________
Date