0120083651
01-27-2009
Valentin L. Estrada, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Valentin L. Estrada,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083651
Agency No. 4G-780-0199-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 19, 2008, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In a complaint dated June 6, 2008, complainant, a Supervisor Customer
Services at the agency's El Paso, Texas Post Office Coronado Station
alleged that he was subjected to discrimination on the bases of race
(Hispanic), and age (5-25-1950), when on April 10, 2008, he was issued
a Notice of Proposed Adverse Action-Removal.
The agency dismissed the complaint for failure to state a claim stating
that the alleged claim in the complaint pertains to a proposed action
and as such does not create a direct and personal deprivation to render
complainant aggrieved.
EEOC Regulation 29 C.F.R.� 1614.107 (a) (5) provides that an agency shall
dismiss a complaint that is moot or alleges that a proposal to take a
personnel action, or other preliminary step to taking a personnel action,
is discriminatory.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a) (1) for failure
to state a claim. The Commission finds that the complaint fails to
state a claim under the EEOC regulations because complainant failed to
show that he suffered 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 further finds that complainant filed a formal
complaint on July 26, 2008, on the same matter after he received the
Letter of Decision removing him from the agency effective June 14,
2008. The agency accepted that complaint for investigation as a mixed
complaint (Agency Case No. 4G-780-0262-08). Accordingly, the agency's
final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
January 27, 2009
__________________
Date
2
0120083651
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036