01a51140
03-09-2005
Gregory P. Mantikas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gregory P. Mantikas v. United States Postal Service
01A51140
March 9, 2005
.
Gregory P. Mantikas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51140
Agency No. 4A 117 0140 03
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated October 6, 2004, pertaining to 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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On September 3, 2003, complainant initiated contact with an agency EEO
office claiming that he was discriminated against when:
from January 1997 until present
(1) management made derogatory remarks to his fellow employees;
(2) management makes his fellow employees and supervisors afraid to
talk to him;
(3) he was not allowed to talk to with fellow employees because
management fears he is talking union business;
(4) he was subjected to Privacy Act violations when his sick leave
call-ins were discussed and he was put on speaker phone for all to hear;
(5) he was treated more severely than others;
(6) he was subjected to excessive discipline, a 7-day letter; and
(7) he was subjected to Family Medical Leave Act (FMLA) discrimination.
Informal efforts to resolve complainant's concerns were unsuccessful.
On September 2, 2004, complainant filed the instant formal complaint,
claiming that he was the victim of unlawful employment discrimination
in reprisal for prior protected activity.
On October 6, 2004, the agency issued a final decision. The agency
dismissed all seven claims on the grounds of untimely EEO Counselor
contact. The agency concluded that complainant's September 3, 2003
contact was beyond the forty-five-day time limitation, and noted that
complainant provided no explicit identification of when the alleged
discriminatory incidents occurred.
The agency dismissed the seven claims on the alternative grounds of
failure to state a claim. With respect to claim (4), the agency also
found that complainant's alleged Privacy Act violations were outside
the Commission's purview. Regarding claim (6), the agency noted that
while complainant alleged that he was subjected to excessive discipline,
he failed to provide a copy of the letter.
Claims (1) - (5) and (7)
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).
Regarding claims (1) - (3), complainant contends that co-workers were
subjected to derogatory remarks, co-workers were afraid to speak with
him and he was not allowed to talk with co-workers. The Commission has
repeatedly found that remarks or comments unaccompanied by a concrete
agency action are not a direct and personal deprivation sufficient to
render an individual aggrieved for the purposes of Title VII. See Backo
v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. United States Postal Service, EEOC Request No. 05940695
(February 9, 1995). Moreover, complainant failed to show how he suffered
a personal loss or harm regarding a term, condition or privilege of his
employment by the alleged acts.
With respect to claim (4), we also find that complainant failed to state
a claim. The Privacy Act, 5 U.S.C. 552(g)(1), provides an exclusive
statutory framework governing the disclosure of identifiable information
contained in federal systems of records and jurisdiction rests exclusively
in the United States District Courts for matters brought under the
provisions of the Privacy Act. See Bucci v. Department of Education,
EEOC Request Nos. 05890289, 05890290, 05890291 (April 12, 1989).
In claim (5), complainant contends that he was �treated more severely
than others.� However, the Commission agrees with the agency that the
claim lacks the necessary specificity. Complainant failed to establish
how he was treated differently, how he was harmed. He failed to state
a claim of discrimination in claim (5).
Similarly, in claim (7) complainant contends he was subjected to FMLA
discrimination. Complainant has not described how specifically he
was harmed. Consequently, the Commission finds that claim (7) fails
to state a claim.
Moreover, a review of the record reflects that the matters in question
in these claims are insufficient to support a claim of harassment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). Accordingly, the agency's dismissal of claims (1) - (5)
and claim (7) for failure to state a claim is AFFIRMED.
Because we affirm the dismissal of claims (1) - (5) and claim (7) for
failure to state a claim, we find it unnecessary to address alternative
dismissal grounds.
Claim (6)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission notes that in an Information for Pre-Complaint Counseling
form, dated September 18, 2003, complainant identified the date that the
alleged discriminatory events took place as �January 1997 - present.�
Similarly, in his formal complaint form, complainant identified the
alleged discriminatory event as �1997 - present.� However, complainant
does not precisely identify the matter raised in claims (6) as having
occurred within forty-five days of his initial EEO Counselor contact of
September 3, 2003. The agency's decision to dismiss claim (6) on the
grounds of untimely EEO Counselor contact was proper and is AFFIRMED.
Because we affirm the agency's dismissal of claim (6) on the grounds of
untimely EEO Counselor contact, we find it unnecessary to address the
alternative dismissal grounds of failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
March 9, 2005
__________________
Date