0120121226
05-31-2012
Christopher G. Loredo, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Christopher G. Loredo,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120121226
Agency No. 4G780000112
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 7, 2011, 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. 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the Agency's Central Post Office facility in Irving, Texas. On November 18, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity when on or about September 10, 2011 his transfer request was red flagged and he was not allowed to work. Specifically, Complainant contends that a charge of driving under the influence, (DUI) in 2003 caused the Agency to "red flag" his transfer request for denial.
In its decision, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a) for failure to state a claim. The Agency found that Complainant cited reprisal for prior EEO activity as the only basis of discrimination and that his prior EEO activity was based on his attempts to secure his requested transfer. As the record indicated that Complainant had no prior EEO activity as defined by EEO regulations, the Agency found that Complainant failed to cite a basis of discrimination within the purview of the Commission's statutes and regulations.
ANALYSIS AND FINDINGS
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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). With regard to reprisal discrimination, the Commission has stated that the anti reprisal provision of Title VII protects those who participate in the EEO process and also those who oppose discriminatory employment practices. Participation occurs when an employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing.
The Commission finds that the Agency properly dismissed the instant formal complaint for failure to state a claim. Complainant alleged that he was discriminated against in reprisal for his prior protected EEO activity which according to Complainant consisted of conversations he had with is his supervisor regarding his transfer request. Complainant further alleges that his prior DUI charge in 2003 influenced the Agency's denial of his transfer request. There is no allegation in the record that Complainant engaged in EEO or any other prior protected activity. When a complaint of reprisal is not based on prior EEO or other activity protected by Title VII, the complaint is not within the purview of Title VII and must be dismissed for failure to state a claim. See Bryant v. Dep't of Justice, EEOC Request No. 05980273 (June 4, 1999).
Finally, in its final decision, the Agency refers to an additional charge in which Complainant alleges that he was treated unfairly by the redress advisor during the informal processing of his complaint. In his formal complaint, Complainant contends that "she is not following up on [his] information and makes [him] feel as if [he] is in the wrong." In its final decision, Complainant was properly advised to bring his allegations to the attention of agency official responsible for the quality of complaints processing in accordance with the EEOC's MD 110, at 5-25.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 31, 2012
__________________
Date
2
0120121226
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121226