Ken Steiner, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Region) Agency.

Equal Employment Opportunity CommissionJul 11, 2005
01a52608 (E.E.O.C. Jul. 11, 2005)

01a52608

07-11-2005

Ken Steiner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Region) Agency.


Ken Steiner v. United States Postal Service

01A52608

July 11, 2005

.

Ken Steiner,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Region)

Agency.

Appeal No. 01A52608

Agency No. 1H-337-0010-04

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated January 27, 2005, dismissing his individual 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.

This complaint was originally sent to an EEOC Administrative Judge

(AJ) for class certification. The AJ found that this complaint did

not meet the standard for class certification because it failed to meet

the requirements of numerosity, commonality, typicality, and adequacy

of representation. The agency implemented the AJ's decision dismissing

the class complaint.

Complainant, the class agent, did not file an appeal of the agency's final

action on his class complaint. Therefore, the agency began processing

his individual complaint. On December 27, 2004, the agency requested

that complainant provide additional information because the class

complaint only addressed generalized issues. Complainant was given

fifteen calendar days from receipt of the letter plus an additional

five days for mailing, which meant that complainant's response needed

to be postmarked or received no later than January 18, 2005. Although

complainant allegedly faxed information on January 17, 2005, the agency

did not receive the facsimile until February 4, 2005. Based on the

untimeliness of complainant's response, we will only consider the issue

framed in the final agency decision dated January 27, 2005. According

to the agency's decision, complainant alleged discrimination when on

February 3, 2004, a supervisor threatened complainant with discipline.

The agency dismissed the complaint for failure to state a claim pursuant

to 29 C.F.R. � 1614.107(a)(1) and for proposing to take a personnel

action pursuant to 29 C.F.R. � 1614.107(a)(5).

The Commission finds that complainant fails to state a claim under the

EEOC regulations because complainant failed to show how he suffered a harm

or loss with respect to a term, condition, or privilege of employment for

which there is a remedy. See Diaz v. Department of the Air Force, EEOC

Request No. 05931049 (April 21, 1994). Even when given the opportunity

to supplement the record with additional information, complainant

failed to support it with evidence showing how the agency's actions

were sufficiently severe or pervasive to state a claim of harassment.

Given that we are dismissing the complaint for failure to state a claim,

we will not address the agency's other procedural ground for dismissal.

Accordingly, the agency's decision dismissing complainant's complaint

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:

July 11, 2005

______________________________ __________________

Carlton M. Hadden, Director Date

Office of Federal Operations