Timothy Walker, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 10, 2005
01a51533 (E.E.O.C. Mar. 10, 2005)

01a51533

03-10-2005

Timothy Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Timothy Walker v. United States Postal Service

01A51533

March 10, 2005

.

Timothy Walker,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A51533

Agency No. 4H-370-0165-04

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision, dated November 23, 2004, regarding a formal complaint

of unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal

in accordance with 29 C.F.R. � 1614.405.

On August 2, 2004, complainant contacted the EEO office regarding claims

of discrimination based on age and disability. Informal efforts to

resolve complainant's concerns were unsuccessful. On November 10, 2004,

complainant filed the instant formal complaint.

In its November 23, 2004 final decision, the agency determined that

complainant's complaint was comprised of the following claim:

On August 7, 2004, management announced during a stand-up talk that the

ASP training program would begin on August 9, 2004, and that candidates

had already been selected from an application process that occurred

in September 2002, which prevented limited duty employees who were

notified in April 2004, that their positions were to be excessed from

consideration.

The agency dismissed the complaint on the grounds of untimely EEO

Counselor contact. The agency found that the allegedly discriminatory

action occurred in September 2002, when the ASP Program was open for

applications. The agency noted that complainant did not apply for the

program at that time. Therefore, the agency concluded that complainant's

August 2, 2004 contact was 23 months after the discriminatory event.

As a preliminary matter, we find that a fair reading of the formal

complaint reflects that complainant claims that the alleged discriminatory

action was its failure to repost the ASP Program so that limited duty

personnel, who had their positions outsourced in April 2004, could

apply. Complainant highlights that �[t]he last posting for the ASP

program ... was in September 2002. Almost 23 months ago.�

While the agency dismissed the complaint on the grounds of untimely

EEO Counselor contact, the Commission determines that the complaint

is more appropriately analyzed in terms of whether it states a claim.

As noted above, complainant stated in his formal complaint that by not

re-posting the program the agency is �denying the limited duty personnel

an opportunity to save their employment with the USPS.� Moreover,

throughout the formal complaint, rather than describing individual harm,

complainant asserted harm to �limited duty employees.� The Commission

finds that the complaint is a generalized grievance and 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) (claim that there

was an imbalance in favoring of African-Americans, against Hispanics,

in development and promotion opportunities was a generalized grievance

purportedly shared by all Hispanic co-workers and therefore failed to

state a claim).

Accordingly, the agency's decision to dismiss the complaint was proper

and 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

March 10, 2005

__________________

Date