Michael A. Mews, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 10, 2004
01A44385_r (E.E.O.C. Nov. 10, 2004)

01A44385_r

11-10-2004

Michael A. Mews, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Michael A. Mews v. United States Postal Service

01A44385

November 10, 2004

.

Michael A. Mews,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A44385

Agency No. 4E-970-0050-04

DECISION

Complainant filed a timely appeal with this Commission from a final agency

decision, dated May 21, 2004, dismissing his formal complaint of unlawful

employment discrimination in violation Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.

On February 19, 2004, complainant initiated contact with an agency

EEO office. Complainant claimed that he was discriminated against when:

(1) On January 23, 2004, he was given a discussion regarding his

performance;

(2) On March 5, 2004, the Postmaster conducted a street observation

instead of the supervisor;

(3) On March 5, 2004, he was secretly observed by his supervisor.

Informal efforts to resolve the matter resulted in a settlement

agreement dated March 12, 2004. However, by letter dated March 23,

2004, complainant alleged breach of the agreement. The agency agreed

that the agreement was breached and, in a letter dated April 6, 2004,

issued complainant a Notice of Right to File Individual Complaint.

On April 14, 2004, complainant filed the instant formal complaint

containing claims (1) through (3), as discussed above. Moreover,

complainant added the following claim:

(4) On March 18, 2004, the settlement agreement of March 12, 2004

was breached.

On May 21, 2004, the agency issued a final decision dismissing the

complaint for failure to state a claim. Regarding claim (1), the

agency found that official discussions alone do not render an employee

aggrieved. Regarding claims (2) and (3), the agency found no evidence

that the observations caused complainant to suffer any measurable personal

harm. Finally, regarding the alleged breach of settlement set forth in

claim (4), the agency stated that it previously determined a breach had

occurred and reinstated the instant complaint for further processing.

Claim (1)

As noted above, complainant contends that he suffered discrimination when

he was given a discussion on his performance. This Commission has held

that official discussions alone do not render an employee aggrieved.

See Miranda v. United States Postal Service, EEOC Request No. 05920308

(June 11, 1992); Devine v. United States Postal Service, EEOC Request

No. 05910269 (April 4, 1991). In the present case, we find no claim

by complainant that the discussion was recorded in any personnel or

supervisory files, nor that it can be used as a basis for any subsequent

disciplinary action. See Devine, supra.

Claims (2) and (3)

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 claims that the Postmaster conducted a street observation

and that he was secretly observed by his supervisor. We agree with

the agency, that complainant has failed to establish that he suffered a

personal loss or harm regarding a term, condition or privilege of his

employment as a result of these observations. Moreover, a review of

the record reflects that the matters in question are insufficient to

support a claim of harassment. See Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997).

Claim (4)

Complainant stated in claim (4) that the agency breached the March 12,

2004 settlement agreement; however, the agency agreed that a breach

occurred and as a result reinstated the instant complaint. The record

contains a April 6, 2004 letter to complainant, informing him that �[a]s

there is no disagreement that the March 12, 2004 settlement agreement

was breached, by this letter I am issuing you your right to continue

processing of your complaint.� Thereafter, complainant filed the formal

complaint that is the subject of the instant appeal. The Commission

finds that the breach claim was resolved by the continued processing of

the complaint, and was properly dismissed.

Accordingly, the agency's decision was proper and 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

November 10, 2004

__________________

Date