Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Jun 14, 2013

0120123285 (E.E.O.C. Jun. 14, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120123285

Agency No. 1E-642-0005-11

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated
January 20, 2011, 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. 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Maintenance
Operations Supervisor at the Agency’s Bulk Mail Center in Kansas City, Kansas. On January
3, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to
discrimination on the bases of disability, age (62), and in reprisal for prior protected EEO
activity when on unspecified dates he was bypassed for promotions to EAS-19, 21, and 24.

On January 20, 2011, the Agency dismissed the claim pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. The Agency determined that Complainant’s claim lacked the
specificity required as he did not identify which promotions he was denied, when they were
posted, or who did not give him consideration. As a result, the Agency dismissed the claim
for failure to state a claim. 1

1 The Agency noted that Complainant raised additional issues during the informal stage, but did
not raise them in his formal complaint. The Agency determined that Complainant abandoned
The instant appeal followed.
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CONTENTIONS ON APPEAL

On appeal, Complainant contends that he has been denied due process by the Agency’s
dismissal. Complainant alleges that he has been denied promotions and labeled a troublemaker
despite working for the Agency for over 24 years with a spotless record. Accordingly,
Complainant requests that the Commission reverse the Agency’s dismissal.

ANALYSIS AND FINDINGS

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, disability, or prior protected EEO activity. 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. Dep’t of the Air Force, EEOC
Request No. 05931049 (Apr. 21, 1994).

After a review of the record, the Commission finds that Complainant has provided no specific
incidents of non-promotion or non-selection. Furthermore, Complainant provided no evidence
that he ever applied for any positions and/or was denied any positions at the Agency. While
being denied a promotion would render an individual aggrieved in most circumstances, in the
instant complaint there is no specific claim which the Agency could investigate. On appeal,
Complainant has not provided any additional information or arguments to counter the Agency's
rationale for dismissal. Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.2

those claims. Complainant did not raise any challenges regarding these claims on appeal;
therefore, the Commission exercises its discretion to address only those issues raised on
appeal.

2 Complainant alluded to additional matters in his formal complaint regarding a reassignment
and subsequent harassment in that reassigned position. The record reveals that Complainant
raised these claims in another complaint (Agency No. 1E-642-0016-10). The Commission
subsequently affirmed the Agency’s dismissal of the reassignment claim for untimely EEO
counselor contact, but reversed the dismissal of the harassment claim and remanded it for
further processing. v. U.S. Postal Serv., EEOC Appeal No. 0120110820.
Complainant’s harassment claim is currently pending a hearing before an EEOC
Administrative Judge. Accordingly, the reassignment and harassment claims are dismissed in
this complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for stating the same claim that is
already pending.

0120123285

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 9-18 (Nov. 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

(S0610)
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

(Z0610)
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
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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

June 14, 2013
Date