Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Jan 15, 2015

0120141326 (E.E.O.C. Jan. 15, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.

Appeal No. 0120141326

Agency No. 4G-335-0020-14

DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated January
15, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision.

During the period at issue, Complainant worked as an Automotive Technician at the Agency’s
Orlando, Florida Vehicle Maintenance Facility (VMF).

On December 21, 2013, Complainant filed a formal complaint alleging that the Agency
subjected him to discrimination on the bases of race, national origin, sex, and age when:

On October 28, 2013, Complainant learned that his position would not be upgraded.

The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for
failure to state a claim. The Agency reasoned that this matter was a generalized grievance and
that Complainant has not alleged any adverse action taken against him. Specifically, the
Agency noted that Complainant stated that the Automotive Technicians at the Orlando VMF do
the same jobs that the Automotive Technicians at the Mid Florida VMF did, yet the Mid
Florida VMF Technicians were upgraded to level 9, while the Orlando VMF Technicians
(where Complainant worked) were not upgraded to level 9. The Agency also found that the
instant complaint constituted an impermissible collateral attack on the collective bargaining
agreement. Specifically, the Agency determined that Complainant should have raised his
allegations through the negotiated grievance process, not through the EEO process.
0120141326

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Upon review, we affirm the dismissal of this claim for failure to state a claim. 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 who believes he or she has been discriminated against by that agency. 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). In the instant case, Complainant did
not state an individualized harm.
Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.

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).

0120141326

3
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

Date
January 15, 2015