0120080016
12-06-2007
Timothy J. Mulvihill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Timothy J. Mulvihill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080016
Agency No. 4A117011007
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 29, 2007, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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 August 21, 2007, complainant alleged that he was
discriminated against on the basis of age (over 40) when he was subjected
to a hostile work environment with respect to "working conditions,
threats, withholding of pay, excessive and unwarranted disciplinary
actions, seizure of personal effects, and failure to provide a safe
working environment."1
The Commission notes that complainant was part of a group of employees
which filed a class complaint concerning a hostile work environment. The
class complainant was not certified by an EEOC Administrative Judge,2 (AJ)
and thereafter complainant filed the instant individual complaint. In his
formal complaint, complainant does not address any individual allegations
or specify what actions were taken against him. The Commission finds
that complainant's complaint is a generalized grievance and, therefore,
fails to state a claim. Complainant failed to identify a specific harm
that he sustained. Complainant cannot pursue a generalized grievance
that members of one protected group are afforded benefits not offered to
other protected groups, unless he further alleges some specific injury
to him as a result of the alleged discriminatory practice. See Warth
v. Seldin, 422 U.S. 490, 499 (1975); Crandall v. Department of Veterans
Affairs, EEOC Request No. 05970508 (September 11, 1997) (claim that nurse
practitioners in one unit received more favorable treatment than nurse
practitioners in other units was a generalized grievance); Rodriguez
v. Department of the Treasury, EEOC Appeal No. 01970736 (August 28,
1997). The Commission further notes that the EEO counselor attempted
to get information from complainant to clarify specific harm, but such
information was not forthcoming. As noted, the formal complaint failed
to address any specific actions taken by the agency specifically against
complainant.
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.
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
December 6, 2007
__________________
Date
1 Complainant did not provide any definition of the issues in his
individual complaint. Therefore, the agency framed the claims based on
information provided in the EEO counselor's report. Complainant did not
object to the framing of the claims, as set forth in the final agency
decision.
2 The decision of the AJ was appealed to the Commission and the matter
is pending. Appeal No. 0120073649.
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0120080016
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080016