Richard J. Fortuna, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 24, 2003
01A24186_r (E.E.O.C. Apr. 24, 2003)

01A24186_r

04-24-2003

Richard J. Fortuna, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Richard J. Fortuna v. United States Postal Service

01A24186

April 24, 2003

.

Richard J. Fortuna,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A24186

Agency No. 4B-020-0043-02

DECISION

Complainant appeals to the Commission from the agency's decision dated

July 17, 2002, dismissing his complaint of discrimination for failure to

state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). In a complaint

dated June 17, 2002, complainant alleged that he was subjected to

discrimination on the bases of age (over 40) and reprisal for prior EEO

activity when his former Postmaster denied his request to serve another

probationary period in an attempt to resolve his prior EEO complaint.

The record indicates that complainant had been terminated from his

probationary position, effective December 5, 2001. He thereafter filed

Complaint No. 4B-020-0017092 in connection with his firing. On March 18,

2002, during settlement negotiations on Complaint No. 4B-020-0017092,

complainant proposed that he be allowed to return to work and begin a

new probationary period. The agency did not agree to this proposal, and

consequently, settlement talks were called off. Complainant thereafter

filed the instant complaint. The record indicates that on March 19, 2002,

the agency accepted Complaint No. 4B-020-0017092 for its investigation.

Agencies are required to dismiss complaints that fail to state a claim.

29 C.F.R. � 1614.107(a)(1). In order to facilitate resolution attempts,

all parties involved in resolution must be free to explore all avenues of

relief, and consequently, offers and statements made by parties cannot be

used against either party if resolution attempts fail. EEO Management

Directive 110 (November 9, 1999) p. 2-16. Since management's refusal

to reinstate complainant occurred during a settlement negotiation,

complainant's allegation that management refused to reinstate him fails

to state a claim. Hammond v. Federal Deposit Insurance Corporation, EEOC

Appeal No. 01950988 (October 20, 1995), request for reconsideration denied

EEOC Request No. 05960124 (November 13, 1997) (interpreting identical

language in an earlier management directive). Accordingly, the agency's

final 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

April 24, 2003

__________________

Date