Theotis Ward, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionJan 4, 2010
0120092966 (E.E.O.C. Jan. 4, 2010)

0120092966

01-04-2010

Theotis Ward, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Theotis Ward,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 0120092966

Agency No. 4H320004509

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated June 10, 2009, 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.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to

state a claim. In a complaint dated May 14, 2009, complainant alleged

that he was subjected to discrimination on the basis of reprisal for

prior protected EEO activity when:

1. He was not paid for 24.5 hours of higher level work performed on

January 9, 2009; and

2. On March 25, 2009, the agency paid complainant and another technician

for performing the same job.

Here, complainant alleges that he was not paid for higher level work

he performed on January 9, 2009. The agency acknowledges in its

final decision, that an error was made regarding complainant's pay for

performing higher level work on January 9, 2009, but indicates further

that the error was corrected in a pay adjustment. Consequently,

the agency argues that complainant was not aggrieved as alleged in

claim 1 above. The agency has submitted documentation indicating

that complainant's pay was in fact adjusted accordingly. In addition,

the Commission notes that the report of the EEO Counselor states that

complainant alleges that the he did not receive pay for 24.5 hours of

higher level work performed "until after the fact."

In claim 2, complainant alleges that the agency paid complainant

and another employee for performing the same job. In response to

complainant's allegation, the agency indicates that complainant and his

coworker performed different jobs on the same machine. Even assuming

that complainant's allegation as identified in claim 2 above is true;

the Commission finds that complainant has failed to demonstrate that

he suffered any harm to the terms and conditions of his employment as

a result of the agency's alleged conduct.

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).

Based on a thorough review of the record herein, the Commission finds

that the complaint fails 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).

Accordingly, the agency's final decision dismissing complainant's

complaint is affirmed for the reasons set forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with the

Court 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

January 4, 2010

__________________

Date

2

0120092966

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0120092966