01a32898
02-10-2004
Robert Provencio, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert Provencio v. United States Postal Service
01A32898
February 10, 2004
.
Robert Provencio,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32898
Agency No. 4G-760-0081-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 12, 2003, dismissing 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In his formal complaint, filed on January 30, 2003, complainant alleged
that he was subjected to discrimination on the bases of race (Hispanic),
national origin (Hispanic), age (D.O.B. 1/17/50), and reprisal for prior
EEO activity when:
On September 27, 2002, he received a letter from a named agency official
instructing complainant to recuse himself of activities that could be
perceived as retaliatory to any employee, including the decision to
equalize the 2002 budget spread for the office;
On several occasions, in an attempt to damage his career, a named agency
official, made statements to complainant indicating that complainant
could be subjected to investigation and removal.
On October 10, 2002, a named agency official threatened to resurrect
an investigation against complainant if he did not stop engaging in
EEO activity;
On October 17, 2002, and January 21, 2003, complainant was confronted
and berated by a named agency official, in an inappropriate, loud voice;
In November 2002, a named agency official denied his request for a
lateral transfer to Sacramento;
In December 2002, complainant was informed and believed that a named
agency official authorized, condoned and ratified falsification of the
results of the city carrier route inspection in the Arlington, Texas
post office; and
On an unspecified date, a named agency official collected and maintained
unauthorized records on complainant in violation of the Privacy Act and
ELM 313.431.
The agency dismissed complainant's complaint for failure to state a
claim. Specifically, the agency determined that complainant had failed
to demonstrate that he was an aggrieved employee within the meaning of
EEOC Regulations. In addition, the agency determined that complainant's
complaint alleged that his rights had been violated under the Privacy Act,
which is outside the purview of the EEO process. The agency dismissed
the complaint for failure to state a claim in accordance with EEOC
Regulation 29 C.F.R. � 1614.107(a)(1).
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).
Claims (1) - (4) and (6)
Upon review of the record herein, the Commission finds that claims (1)
- (4) and (6) fail to state a claim under the EEOC regulations because
complainant failed to show that he suffered 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). 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). Accordingly, the agency's decision to dismiss claims (1) -
(4) and (6) in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1)
was proper and is AFFIRMED.
Claim 5
Upon review, the Commission finds that claim (5), regarding the denial of
complainant's request for a lateral transfer, was improperly dismissed for
failing to state a claim. Complainant has alleged that he was subjected
to discrimination based on his race, national origin, age and in reprisal
for his prior EEO activity when his request for a lateral transfer to
Sacramento was denied in November 2002. We find that complainant has
stated a justiciable claim of employment discrimination in this claim.
Accordingly, the agency's decision to dismiss claim (5) is REVERSED.
Claim (7)
Regarding claim (7), the Commission finds that to the extent that
complainant is alleging a Privacy Act violation, we note that such a
claim is outside the purview of the Commission. See Bucci v. Department
of Education, EEOC Request Nos. 05890289, 05890290, 05890291 (April 12,
1989). The Commission finds that the agency's decision dismissing claim
(7) was proper and is AFFIRMED.
In summary, the agency's decision dismissing claims (1) - (4), (6)
and (7) is AFFIRMED for the reasons set forth herein. The agency's
decision dismissing claim (5) is REVERSED and that claim is REMANDED to
the agency for further processing in accordance with this decision and
the order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
February 10, 2004
__________________
Date