0120081024
03-21-2008
Gerald S. Fields, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gerald S. Fields,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081024
Agency No. 4G-770-0399-07
DECISION
Complainant filed an appeal with this Commission from a November 9, 2007
final agency decision (FAD) dismissing his EEO complaint of unlawful
employment discrimination claiming violations of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
At the time the events at issue occurred, complainant was a Carrier
Technician at an agency facility in Houston, Texas. In a complaint
filed on October 29, 2007, complainant alleged he was discriminated
against on the bases of race (African American) and age (DOB 2/8/57)
when, in July 2007, management circulated a list of names of carriers,
including complainant, with the amount of penalty overtime worked.
In a final decision dated November 9, 2007, the agency dismissed the
complaint for failure to state a claim. It is from this decision that
complainant now appeals.
The EEOC 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 or disabling condition. 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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
After review of the record, we conclude that the agency properly dismissed
the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to
state a claim. Complainant has not alleged facts that, if proven true,
would establish he suffered a personal harm or loss with respect to
a term, condition, or privilege of employment that could be remedied.
We note that there is no allegation that any adverse action was taken
against complainant because his name appeared on the list. Moreover, this
allegation alone is insufficient to establish a claim of discriminatory
hostile work environment. Finally, to the extent that complainant may
be alleging a violation of the Privacy Act, the Commission also finds
that the instant complaint fails to state a claim. The Privacy Act,
5 U.S.C. �552, provides an exclusive statutory framework governing the
disclosure of identifiable information contained in federal systems of
records, and jurisdiction rests exclusively in the United States District
Courts. See Bucci v. Dep't of Education, EEOC Request Nos. 05890289,
05890290, 05890291 (April 12, 1989).
Accordingly, for the reasons stated above, the agency's dismissal of
the instant 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
March 21, 2008
__________________
Date
2
0120081024
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120081024