0120093518
01-14-2010
David L. Cornelius, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
David L. Cornelius,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120093518
Agency No. 1G761004709
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 15, 2009, 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 a complaint dated June
29, 2009, complainant alleged that he was subjected to discrimination
on the bases of disability (unspecified), age (55), and reprisal for
prior protected EEO activity when since March 25, 2009 and continuing,
complainant has been required to provide documentation each time he uses
sick leave.
The agency dismissed the instant matter in accordance with EEOC Regulation
29 C.F.R. � 1614.107(a)(1) for stating the same claim that is pending or
has been decided by the agency or Commission. Specifically, the agency
determined that in Agency No. 1G-761-0069-08 filed September 16, 2008,
complainant alleged discrimination based on race, color, sex, age and
disability when:
beginning on June 29, 2008, he has been harassed when his supervisor
made the comment, "I'll fire his ass" regarding complainant, medical
documentation was requested for his absences and talks and threats were
made to move complainant to the day shift
The agency found that the instant matter is identical to complainant's
prior complaint. The regulation set forth at 29 C.F.R. � 1614.107(a)(1)
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. The Commission has consistently held that in order for
a complaint to be dismissed as identical, the elements of the complaint
must be identical to the elements of the prior complaint in time, place,
incident and parties. See Jackson v. Department of the Air Force, EEOC
Appeal No.01955890 (April 5, 1996) rev'd on other grounds, EEOC Request
No. 05960524 (April 24, 1997).
The Commission determines that the claim raised in the prior complaint,
Agency No. 1G-761-0069-08 and the claim raised in the instant complaint
are not identical. Specifically, as complainant's attorney argues
on appeal, the record reflects that the matters raised in the prior
complaint address the agency's alleged conduct beginning in June 2008,
regarding medical documentation for absences, and also addresses a
specific comment from complainant's supervisor, and talk of reassigning
complainant to another shift. The instant matter alleges that the agency
requested medical documentation for absences beginning in March 2009.
Consequently, the Commission finds that the instant matter is not
identical to the claim filed in complainant's prior complaint.
Upon review, however, the Commission finds that the instant matter fails
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 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).
Here, complainant has failed to demonstrate that the agency's alleged
conduct resulted in any specific adverse action. The record does not
indicate that he was disciplined, or denied leave as a result of the
agency's actions. Moreover, complainant has failed to demonstrate
that the agency's alleged conduct was so severe and pervasive that it
altered the conditions of complainant's employment. In that regard,
we find that the instant matter is appropriately dismissed for failure
to state a claim.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
January 14, 2010
__________________
Date
2
0120093518
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093518