01A21907_r
12-23-2002
Adan R. Flores, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Adan R. Flores v. United States Postal Service
01A21907
December 23, 2002
.
Adan R. Flores,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A21907
Agency No. 4G-780-0075-01
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated January 22, 2002, 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., 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. In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of national origin (Hispanic), disability (stroke and coronary disease),
and age (51), when he was subjected to a hostile work environment when:
Complainant received an October 11, 2000 proposal to reduce him in
grade; and
Complainant received an October 23, 2000 letter recommending that he be
excluded from the Economic Value Added payment for Fiscal Year 2000.
The agency dismissed both issues (1) and (2) pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(5), for involving proposals to take
an action. Alternatively, the agency dismissed issue (2) pursuant to
29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The agency
stated that the October 23, 2000 letter was rescinded and therefore does
not state a claim. The agency also dismissed issue (2) on the grounds
that it was moot claiming that the effects of the alleged violation have
been eradicated and that it can be said with reasonable assurance that the
violation will not recur. Alternatively, the agency dismissed issue (1)
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(4), for
raising the same matter in an appeal to the Merit Systems Protection Board
(MSPB). The agency also argued that to the extent issue (1) references
issues other than complainant's reduction in grade, these issues should
be dismissed as untimely. The agency noted that complainant initiated
contact with an EEO Counselor on October 27, 2000, and stated that any
issue raised prior to September 12, 2000, forty-five (45) days prior to
initial contact, should be dismissed as untimely.
The record reveals that the agency issued a letter dated October 6,
2000, proposing to reduce complainant from Manger, Business Entry,
EAS-20, to PS-05 Clerk based on Erroneous Completion of PS Form
1260/Denying Overtime to employee/Misuse of Government Vehicle and
property for personal benefit. Subsequently, on November 15, 2000,
the agency demoted complaint from Manager, Business Entry, EAS-20, to
PS-05 Clerk based on: (1) Erroneous Completion of PS Form 1260/Denying
Overtime to employee/Misuse of Government Property and (2) Failure to
Follow Instructions. On December 9, 2000, complainant filed an appeal
with the MSPB challenging his demotion from an EAS-20 Manager, Business
Mail Entry, to a PS-05 Clerk. The MSPB issued a decision on December
20, 2001, affirming the agency's action. The MSPB Administrative Judge
(AJ) specifically found that complainant did not prove his affirmative
defense of sex, race, age, disability, or reprisal discrimination.
Upon review, we find that the agency properly dismissed issue (1) pursuant
to 29 C.F.R. � 1614.107(a)(4). The record shows that the MSPB accepted
jurisdiction over complainant's appeal and rendered an initial decision on
December 20, 2001. The matter raised in issue (1) of complainant's EEO
complaint, i.e., the October 11, 2000 proposal to reduce him in grade,
is inextricably intertwined with the issue raised in the MSPB appeal.
With regard to issue (2), we find that the agency properly dismissed this
issue on the grounds that it fails to state a claim. The record shows
that the agency issued a letter dated October 23, 2000, recommending
that complainant be excluded from the FY2000 EVA credit. The record
contains another letter dated October 30, 2000, rescinding the October
23, 2000 recommendation. Complainant has failed to claim or show that
he was actually excluded from the FY2000 EVA credit. Therefore, we find
that complainant is not aggrieved in issue (2). Furthermore, issue (2)
is insufficient by itself to state a claim of harassment. Therefore,
we find that issue (2) was properly dismissed for failure to state a
claim pursuant to � 1614.107(a)(1).
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 23, 2002
__________________
Date