01A34600_r
04-29-2004
Terry L. Smedley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terry L. Smedley v. United States Postal Service
01A34600
4/29/2004
.
Terry L. Smedley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34600
Agency No. 4E-640-0041-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 25, 2003, dismissing his complaint of unlawful
employment discrimination.
Complainant initiated contact with the EEO office on January 9, 2003,
alleging that he was a victim of discrimination in reprisal for prior
EEO activity. The record contains an agency Initial EEO Contact Sheet
dated January 9, 2003. The Contact Sheet indicated that complainant
underwent EEO Counseling on the following matter: �not allowing union time
- violation of the contract.� The record also contains an Information
for Pre-Complaint Counseling where complainant stated that he was denied
union time to process grievances. Moreover, the record contains an EEO
Dispute Resolution Specialist Inquiry Report wherein an agency official
indicated that complainant stated that on January 9, 2003, he was not
allowed union time in �violation of the contract� and that the official
explained to complainant that he had other recourse for addressing this
matter, such as through his union or the National Labor Relations Board.
Informal efforts to resolve his concerns were unsuccessful.
Thereafter, on March 16, 2003, complainant filed a formal complaint.
In its final decision, dated June 25, 2003, the agency determined that
the instant complaint was comprised of the following four claims:
1) on January 9, 2003, [complainant] was not allowed union time in
violation of the contract.
2) on January 27, 2003, [complainant] was reprimanded on the workroom
floor and falsely accused of time wasting practices on his route;
3) on February 10, 2003, [complainant] was given a discussion for the
same charges; and
4) on February 13, 2003, [complainant] was informed that management was
proposing a letter of warning.
In its final decision, dated June 25, 2003, dismissed claims (1) - (3)
for failure to state a claim, pursuant to 29 C.F.R. � 1614. 107(a)(1).
Regarding claim (1), the agency stated without elaboration that
complainant filed a grievance on this matter that was resolved in his
favor. In addition, the agency dismissed claim (4) for alleging a
proposed personnel action as discriminatory, pursuant to 29 C.F.R. �
1614.107(a)(5).
On appeal, complainant states that in regard to the matter raised in
claim (1), he should not have had to file a grievance, and that this
�is spelled out in the JCAM [Joint Contract Administration Manual].�
Claims (1) - (3)
Regarding claim (1), the agency dismissed this claim for failure to state
a claim, stating in its final decision that complainant filed a grievance
on this issue that was resolved in his favor. 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 record reflects that complainant in his formal complaint, dated March
16, 2003, states he �won a grievance over being allowed union time and
[is] allowed more time to complete [his] steward duties.� In addition,
complainant refers to filing a grievance, in regard to claim (1), in his
statement on appeal. The Commission determines that the identified issue
in claim (1) relates to a union matter, and is not under the purview of
EEOC Regulations.
The agency also dismissed claims (2) and (3) for failure to state a
claim, stating in its final decision that complainant has not shown
how he is aggrieved. In regard to claims (2) and (3), complainant
has failed to show that he suffered a harm or loss with respect to a
term, condition, or privilege of employment. 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)
The agency dismissed claim (4) for alleging a proposal to take a
personnel action. The regulation set forth at 29 C.F.R. � 1614.107(a)(5)
provides, in part, that the agency shall dismiss a complaint that alleges
that a proposal to take a personnel action, or other preliminary step
to taking a personnel action, is discriminatory.
The Commission finds that claim (4) was merely a proposal to take a
personnel action. Therefore, the Commission finds that the agency
properly dismissed claim (4).
Accordingly, the agency's decision dismissing claims (1) - (4) 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
4/29/2004
Date