0120063818
10-31-2006
Terry L. Henderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terry L. Henderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200638181
Agency No. 1G-731-0011-06
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 25, 2006, dismissing his formal EEO 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.
In the instant complaint, filed on May 22, 2006, complainant claimed that
he was the victim of unlawful employment discrimination in reprisal for
prior EEO activity when:
on March 14 or 15, 2006, complainant was paged over the intercom to report
to the East Dock by the Expeditor; however he heard a subsequent message
over the intercom from the Manager Distribution Operations stating
"he's working."
In its May 25, 2006 final decision, the agency dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
Specifically, the agency stated that complainant was not an "aggrieved
employee" because a term, condition or privilege of his employment was
not affected by the actions of the Manager Distribution Operations.
On appeal, complainant, through his representative, contends that
the agency did not correctly state his claim of discrimination in its
final decision. Complainant further states that his attached statement
to the instant complaint stated more than what the agency claimed was
his complaint. Complainant asserts that in his attached statement,
he indicated that "about a week or so later, I was teasing with [a
named Expeditor] and asked why he hasn't called me to the East Dock.
He told me that [the Manager Distribution Operations] said "[Complainant]
is not to go anywhere..."
In response, the agency argues that assuming arguendo complainant's
claim was not correctly stated in its final decision, the following
claim stated in complainant's brief failed to state a claim.
Upon review, the Commission agrees with the agency that the alleged
incidents, identified by the agency in its final decision, as well
as elaborated by complainant on appeal, do not address a personal
loss or harm regarding a term, condition or privilege of complainant's
employment as a result of the alleged incidents. See Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994). 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
October 31, 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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0120063818
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063818
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