01996187
06-26-2001
Thomas Dillon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas Dillon v. United States Postal Service
01996187
June 26, 2001
.
Thomas Dillon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996187
Agency No. 4A-117-0045-99, 4A-117-0058-99
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 7, 1999, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 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 age, disability and reprisal when the agency:
Failed to timely respond to his request for counseling;
Improperly processed all of his EEO complaints;
Failed to respond to his requests for information regarding policies
and procedures for EEO cases and Freedom of Information (FOIA) requests;
Failed to respond to his requests for information regarding charges that
were brought against him; and
Downgraded him to a Level 5, part-time Flexible Clerk position.
The agency dismissed claims 1, 2, and 3 pursuant to EEOC Regulation 29
C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically,
the agency's final decision (FAD) found that in claims 1, 2, and 3,
complainant challenged the processing of his previously filed complaints.
The agency found therefore that complainant had failed to state a claim
pursuant to EEOC regulations. The FAD also found that complainant's
claim regarding his FOIA requests similarly failed to state a claim.
The agency noted in its decision that the Commission has repeatedly held
that it does not have jurisdiction over the processing of FOIA requests.
Finally, the agency dismissed claims 4 and 5 pursuant to EEOC Regulation
29 C.F.R. � 1614.107(a)(1) on the grounds that they stated the same
claims pending before the agency. Specifically, the agency indicates that
complainant's claim that he was not notified of charges pending against
him, and his claim regarding his demotion, were raised by complainant
in a prior mixed case complaint, Agency Case No. 4A-117-0049-99.
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).
Upon review, we find that the agency's decision to dismiss claims 1, 2,
and 3 for failure to state a claim was proper. Complainant alleged that
the agency failed to timely respond to his requests for EEO counseling
and generally failed to properly process all of his EEO complaints.
The Commission finds that complainant's claims do not state a justiciable
claim of employment discrimination. Moreover, we point out that Part
1614 of the EEOC Regulations specifically requires the dismissal of a
complaint that alleges dissatisfaction with the processing of a previously
filed complaint. See EEOC Regulation 29 C.F.R. � 1614.107(a)(8).
In addition, the Commission has held that it does not have jurisdiction
over the processing of FOIA requests. Instead, persons having a dispute
regarding such requests should bring any appeals about the processing of
his or her FOIA requests under the appropriate FOIA regulations. Gaines
v. Department of the Navy, EEOC Request No. 05970386 (June 13, 1997).
In the instant case, therefore, complainant's allegation that the agency
improperly handled his FOIA request fails to state a claim within the
purview of the EEOC regulations at 29 C.F.R. � 1614.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) further 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.
A review of the record reveals that complainant rased claims 3 and 4 of
the instant complaint in prior mixed case complaint No. 4A-117-0049-99 .
In that regard, we find that the agency's decision dismissing claims 3
and 4 was proper.
Based on a through review of the record, it is the decision of this
Commission that the agency's decision was proper and is AFFIRMED for
the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 26, 2001
__________________
Date