01A04950
03-13-2001
Manuel E. Velosa, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Manuel E. Velosa, Jr. v. United States Postal Service
01A04950
March 13, 2001
.
Manuel E. Velosa, Jr.,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04950
Agency No. 1B-018-0044-00
DECISION
Complainant filed an appeal with the Commission from an agency decision
pertaining to his 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 Commission accepts the appeal
in accordance with 20 C.F.R. � 1614.405.
Believing that he was the victim of discrimination based on reprisal
for prior protected activity, complainant contacted the EEO office.
Specifically, complainant claimed he was discriminated against when on
December 20, 1999, complainant was informed he could no longer use the
computer in a supervisor's office to input overtime data �as agreed and
as assigned by Union Steward.�
On April 28, 2000, complainant filed a formal complaint that addressed
the matters for which he underwent EEO counseling, discussed above.
On June 2, 2000, the agency issued its final decision dismissing the
complaint for failure to state a claim. Specifically, the agency stated
that complainant was not aggrieved by the alleged incident raised in the
complaint. Further, the agency determined that the action complained
of represents an issue concerning complainant's duties as an Alternate
Union Steward, not as an employee, and therefore, the agency determined
that the proper forum for the complainant to pursue a remedy for his
claim is through the grievance process.
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 fails to show how the alleged
incident resulted in a harm or loss regarding a term, condition or
privilege of his employment. Additionally, the Commission notes that
the proper forum for the complainant to pursue a remedy for his claim is
through the grievance process since it concerns complainant's duties as
a union official. Thus, the Commission finds that the agency properly
dismissed the complaint for failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1). Accordingly, the agency's final decision
dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 13, 2001
__________________
Date