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.