Terry L. Smedley, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 29, 2004
01A34600_r (E.E.O.C. Apr. 29, 2004)

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