01a54558
10-19-2005
Steven G. Miller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven G. Miller v. United States Postal Service
01A54558
October 19, 2005
.
Steven G. Miller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54558
Agency No. 1B-141-0011-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 12, 2005, dismissing his complaint of unlawful
employment discrimination in violation of 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 basis of age (D.O.B. 2/6/57) when, since Calendar Year 2001,
management has attempted to send complainant to Norman, OK on seven
(7) occasions for maintenance training, successfully on three (3),
most recently on February 19, 2005.
The record reveals that complainant alleged younger employees, including
the complainant, were required to travel to Norman, OK to attend
training while older employees were not subject to the same requirement.
Specifically, complainant alleged reverse discrimination, arguing that
employees who were over age fifty (50) were treated more favorably with
respect to training assignments than employees who were under age fifty
(50).
The agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. Specifically, the
agency determined that complainant lacked standing because the crux of
complainant's claim is a generalized grievance. The agency also found
that complainant was alleging a reverse discrimination claim, which
is not allowed under the ADEA. Finally, the agency determined that
complainant failed to state a claim under the ADEA because he failed to
allege similarly situated, younger employees were treated more favorably
by the agency.
On appeal, complainant argues that he continues to be discriminated
against and cites additional incidents that he alleges occurred because
of his age. In response, the agency restates the position it took in
its decision and requests that we affirm its final order.
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,
� 1614.106(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). To state a claim under the
Commission's regulations, an employee must allege and show an injury
in fact. Specifically, an employee must allege and show a "direct,
personal deprivation at the hands of the employer," that is, a present
and unresolved harm or loss affecting a term, condition, or privilege
of his employment. Id.
We concur with the agency that complainant's claim constitutes a
generalized grievance that is shared by all or a substantially large
class and is insufficient to establish standing. Complainant cannot
pursue a generalized grievance unless he further alleges some specific
injury to himself as a result of the alleged discriminatory practice.
See Warth v. Seldin, 422 U.S. 490, 499 (1975); Crandall v. Department
of Veterans Affairs, EEOC Request No. 05970508 (September 11, 1997).
Therefore, we find that the complaint constitutes a generalized grievance,
which fails to state a claim.
To the extent that complainant is alleging a specific harm or injury,
complainant's claim is dismissed for failure to state a claim because
complainant's claim does not fall under the purview of the EEO process.
The record indicates that complainant alleged reverse discrimination,
arguing he was discriminated against because employees who were
over age fifty (50) were treated more favorably with respect to
training assignments than complainant, who was under age fifty (50).
However, the ADEA does not allow for claims of reverse discrimination.
Cline v. General Dynamics Land Systems, Inc., 540 U.S. 581, 600 (2004);
Esposito v. Department of Defense, EEOC Appeal No. 01A45905 (March
16, 2005). The ADEA �does not mean to stop an employer from favoring
an older employee over a younger one.� Cline, 540 U.S. at 600. Thus,
we find the complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim.
Finally, we note that complainant raises new allegations on appeal.
Complainant is advised that if he wishes to pursue the additional
allegations he raised for the first time on appeal, he should initiate
contact with an EEO Counselor. The Commission will not accept a new
claim raised on appeal.
Accordingly, the agency's final decision dismissing complainant's
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
October 19, 2005
__________________
Date