01991735_r
06-16-1999
Daniel C. Russo, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Daniel C. Russo, )
Appellant, )
)
v. ) Appeal No. 01991735
) Agency No. 1C-191-0073-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final decision was received by appellant
on August 12, 1998. The appeal was postmarked September 11, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
On January 2, 1998, appellant initiated contact with an EEO Counselor.
In the Information for Pre-complaint Counseling form, dated January
2, 1998, appellant stated that the matter for which he underwent EEO
counseling related to an incident on November 25, 1997. In other
documents contained in the record, appellant provided details of the
alleged incident. The record, for example, contains a memorandum
to the Postal Inspection Service, dated November 26, 1997. Therein,
appellant stated that on the evening of November 25, 1997, he was stalked
by an agency female employee, who trailed him by car, as he commuted
from an agency facility in Philadelphia to his home in New Jersey.
Informal efforts to resolve appellant's concerns were unsuccessful.
On June 29, 1998, appellant filed a formal complaint, alleging that he
was the victim of unlawful employment discrimination on the basis of sex.
Therein, appellant addressed the incident of November 25, 1997, discussed
above, and stated that he had unsuccessfully contacted agency officials
for relief. Moreover, appellant alleged that the employee who purportedly
stalked him lied to investigators and Postal Inspectors during an official
investigation in the fall of 1995, and that she lied to an Administrative
Judge of the Merit Systems Protection Board in spring of 1996. Finally,
appellant alleged that the employee arranged to attend the same RBCS
Training Course that appellant attended in Norman, Oklahoma in the spring
of 1998. As relief, appellant requested that immediate corrective
action be taken against the employee, and that additional action be
taken against her for lying under oath and during an agency investigation.
On August 6, 1998, the agency issued a final decision. Therein, the
agency found that appellant's complaint was comprised of the following
three allegations:
1. In November 1997, appellant was stalked by a female employee.
2. In the fall of 1995, the female employee lied to investigators and
Postal Inspectors during an official Post Office Investigation, and
that she lied to an Administrative Judge of the Merit Systems Protection
Board in the spring of 1996.
3. In the spring of 1998, the female employee arranged to attend the
same Remote Bar Code Sorter (RBCS) Training Course that appellant was
attending in Norman, Oklahoma.
The agency dismissed allegation 1 for failure to state a claim; allegation
2 on the grounds that appellant did not raise the matter before an EEO
Counselor and it is not like or related to a matter for which appellant
underwent EEO counseling; and allegation 3 for failure to state a claim
and on the alternative grounds that appellant failed to contact an EEO
Counselor regarding this matter.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
The agency dismissed allegations 1 and 3 for failure to state a claim.
We find that the matters raised therein do not address a harm or loss
relating to a term, condition, or privilege of employment. In allegation
1, appellant alleges that he was followed by a co-worker as he commuted
home one evening after work; in allegation 3, appellant alleges that
the same co-worker applied for the same training course that appellant
was attending. We find that appellant was not rendered aggrieved as a
result of the co-worker's purported actions. Accordingly, the agency's
decision to dismiss allegations 1 and 3 for failure to state a claim
was proper and is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that raises a matter that
has not been brought to the attention of a Counselor and is not like or
related to a matter that has been brought to the attention of a Counselor.
The record reflects that appellant underwent EEO Counseling specifically
on the issue of purportedly being followed by a co-worker on an evening
in November 1997. Allegation 2 addresses the co-worker's purported lying
to agency officials during an investigation, and to an Administrative
Judge of the Merit Systems Protection Board. We find that appellant did
not undergo counseling regarding this matter, and that it is not like or
related to a matter for which appellant had undergone EEO counseling.
Accordingly, the agency's decision to dismiss allegation 2 was proper
and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
June 16, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations