01A23196_r
09-04-2002
John S. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John S. Brown v. United States Postal Service
01A23196
September 4, 2002
.
John S. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23196
Agency No. 4F-956-0023-02
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 6, 2002, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of age when on October 5, 2001, he was
informed by Personnel Services, that his PS 991 (Application for
Promotion), was not on file.
The agency dismissed the complaint on the grounds of mootness.
Specifically, the agency noted that by letter dated October 5, 2001,
complainant was asked to submit an updated Application for Promotion form
for inclusion in a future review by Managers, Post Office Operations.
The agency further noted that the October 5, 2001 correspondence contained
detailed suggestions for updating complainant's PS Form 991, including
the use of the STAR (Situation, Task, Action, Result) method. The agency
concluded that complainant's claim was moot and dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(5).
While the agency dismissed the instant complaint on the grounds
of mootness, the Commission determines that this complaint is more
properly analyzed in terms of whether it states a claim. EEOC Regulation
29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint
which fails to state a claim within the meaning of 29 C.F.R. �1614.103.
In order to establish standing initially under 29 C.F.R. �1614.103, a
complainant must be either an employee or an applicant for employment
of the agency against which the claims of discrimination are raised.
In addition, the claims must concern an employment policy or practice
which affects the individual in his or her capacity as an employee or
applicant for employment. 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; �1614.106(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 determines that the matter raised in the instant complaint
fails to state a claim. Complainant has not identified a present harm
or loss regarding a term, condition or privilege of his employment for
which there is a remedy. The agency's decision to dismiss the complaint
is therefore 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
September 4, 2002
__________________
Date