01A23822_r
01-09-2003
Jose-Luis Corral, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jose-Luis Corral v. United States Postal Service
01A23822
January 9, 2003
.
Jose-Luis Corral,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23822
Agency No. 4F-945-0146-99
Hearing No. 370-A0-X2295
DECISION
Complainant timely initiated an appeal from the agency's final order
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 record reveals that complainant, a Letter Carrier at the agency's
Richmond facility, San Pablo Branch, San Pablo, California, filed a
formal EEO complaint on September 11, 1999, alleging that the agency
discriminated against him on the bases of national origin and in reprisal
for prior EEO activity. Complainant claimed that on May 26, 1999,
management allegedly singled him out when he was called into the office to
be questioned regarding the reasons he was late arriving from the street.
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 AJ issued a decision without a hearing,
dismissing the complaint for failure to state a claim. The AJ found
that complainant did not explain how the alleged incident adversely
affected a term, condition or privilege of his employment. Specifically,
the AJ found that complainant failed to provide evidence indicating that
the May 26, 1999 discussion with his supervisor appeared in any official
personnel record or that any adverse action was taken against him based
on the discussion.
The AJ further found assuming arguendo, that complainant stated
a justiciable claim, he failed to establish a prima facie case of
discrimination.
The agency issued a Notice of Final Action implementing the AJ's
dismissal.
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).
Complainant contends that he was discriminated against when management
allegedly singled him out when he was called into the office to question
him why he was late arriving from the street. After a careful review of
the record, we find that he has failed to show how his employment was
adversely affected by the alleged incident. The record does not establish
that complainant suffered a personal harm or loss to a term, condition,
or privilege of his employment as a result of being questioned why he
arrived late from the street.
Accordingly, the agency's action implementing the AJ's decision was
proper and is hereby AFFIRMED.
Because we find that the instant complaint was properly dismissed
for failure to state a claim, we find it unnecessary to address the
alternative finding of no discrimination.
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
January 9, 2003
__________________
Date