James A. Brady, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 14, 2006
01a55711 (E.E.O.C. Feb. 14, 2006)

01a55711

02-14-2006

James A. Brady, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


James A. Brady v. United States Postal Service

01A55711

February 14, 2006

.

James A. Brady,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A55711

Agency No. 4H-330-0163-04

Hearing No. 150-2005-00057X

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning his equal employment opportunity (EEO) 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant, a Distribution Window Clerk, at the agency's Key West Main

facility in Key West, Florida, filed a formal EEO complaint on May

8, 2004. Therein, complainant claimed that the agency discriminated

against him on the basis of national origin (Irish) when:

he was not allowed to wear an Irish scally cap on March 17, 2004,

St. Patrick's Day, while working as a Distribution Window Clerk.<1>

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). The agency thereafter filed a Motion to Dismiss or in

the alternative, an Agency's Memorandum in Support of its Motion for a

Decision Without a Hearing Pursuant to 29 C.F.R. � 1614.109(g).

In its motion, the agency request the AJ to issue a decision without a

hearing, in its favor. The agency argued that complainant's complaint

should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for

failure to state a claim. The agency further argued that complainant

was not aggrieved since he suffered no harm as a result of the alleged

discriminatory action. As to the merits of complainant's complaint, the

agency argued that complainant failed to establish a prima facie case of

national origin discrimination; and that assuming arguendo complainant

established a prima facie case, management articulated legitimate,

nondiscriminatory reasons for its actions which complainant failed to

show were pretext for discrimination.

On June 13, 2005, the AJ granted the agency's motion to dismiss. The AJ

determined that the agency properly set forth the undisputed facts

and applicable law in its motion, and incorporated it in her decision.

The AJ found that complainant failed to state a claim. Specifically,

the AJ found that complainant was not aggrieved because he suffered no

harm due to the alleged discriminatory action.

On July 22, 2005, the agency issued a final decision implementing the

AJ's decision dismissal 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 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).

The Commission finds that complainant failed to show how the alleged

incident resulted in a harm or loss regarding a term, condition

or privilege of his employment. The alleged event does not render

complainant an "aggrieved" employee. Accordingly, the agency's final

decision implementing the AJ's dismissal of the complaint for failure

to state a claim is AFFIRMED.

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

February 14, 2006

__________________

Date

1In the record, the cap is referred to as both a �scally� cap as well

as a �scully� cap.