01993620
08-08-2000
Stephen D. Mason, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Stephen D. Mason v. United States Postal Service
01993620
August 8, 2000
Stephen D. Mason, )
Complainant, )
)
v. ) Appeal No. 01993620
) Agency No. 4K-200-0004-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On April 1, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) pertaining to his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>
The Commission accepts the appeal pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405).
In his complaint, complainant claims that he was subjected to
discrimination on the bases of race, color, religion, national origin,
sex, age, reprisal, and disability when:
Complainant received a Notice of Removal on July 16, 1998; and,
(2) His union has failed to conduct his grievances and arbitrations in a
proper and impartial manner
The agency dismissed claims 1 and 2 on the grounds that they are the same
claims raised in a prior EEO complaint (Complaint No. 4K-200-0253-98).
The agency dismissed claim 2 on the alternative grounds that it was not
discussed with the EEO counselor, and for failure to state a claim.
On appeal, complainant acknowledges that he filed a prior EEO complaint
regarding claim 1, in Complaint No. 4K-200-0253-99. Complainant
indicates, however, that claim 2 is the most important matter raised
in the instant complaint, and requests that the Commission give it due
consideration. In response, the agency requests that the Commission
affirm its FAD.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
cited as 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. Although a copy of the
complaint is not in evidence, both the agency and complainant acknowledge
that claim 1 was raised in agency EEO Complaint No. 4K-200-0253-98, which
is being processed by the agency. Therefore, we find that the agency
properly DISMISSED claim 1 and AFFIRM the agency's decision to dismiss
this claim on the grounds that it was raised in a prior complaint.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1)) further 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 22, 1994).
Regarding claim 2, the Commission determines that the matter raised
therein fails to state a claim. The laws and regulations administered
by the Commission pertain only to employment discrimination regarding
the bases set forth above, and do not address concerns with the union
grievance process such as the purported inadequacy of the union's conduct
in grievances and arbitration hearings. Therefore, we determine that
the agency's decision to dismiss claim 2 for failure to state a claim
was proper and is AFFIRMED.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
August 8, 2000
________________________________
Date Carlton M. Hadden, Director
Office of Federal Operations
1 On 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 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at www.eeoc.gov.
2 Because the Commission affirms the agency's dismissal of claim 2 for
failure to state a claim, we will not address the agency's alternative
grounds for dismissal of this claim.