01A22048_r
03-18-2003
Howard K. Gross, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Howard K. Gross v. United States Postal Service
01A22048
March 18, 2003
.
Howard K. Gross,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22048
Agency No. 4K-200-0140-99
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated January 9, 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.
The record reveals that, at all relevant times, complainant was a Letter
Carrier with the agency's Rockville Post Office located in Rockville,
Maryland. On April 4, 1999, complainant initiated contact with an EEO
Counselor. Informal efforts to resolve his concerns were unsuccessful.
On October 18, 2001, complainant filed a formal EEO complaint, alleging
that he was the victim of unlawful employment discrimination in reprisal
for prior EEO activity when:
(1) on July 12, 1996, he was issued a 14-day suspension;
(2) on August 30, 1996, there was a controversy regarding his OWCP claim;
(3) on September 18, 1996, he was issued a Notice of 14-day Suspension;
(4) on October 7, 1996, he was issued a 14 Notice of 14-day Suspension;
(5) on November 19, 1996, he was issued a Notice of Removal;
(6) on January 24, 1997, he was issued a Notice of Removal;
(7) on September 18, 1997, he was issued of Notice of Emergency
Suspension;
(8) on November 3, 1997, he was issued a Notice of Removal;
(9) on November 3, 1997, his driving privileges were suspended for
59 days;
(10) on December 14, 1998, he was issued a Notice of Removal and
disallowed pay;
(11) on June 1, 1998, he was issued a Notice of 14-day suspension;
(12) on June 3, 1998, he was instructed to use a �porta-potty;�
(13) on July 15, 1998, he was instructed about EAP appointment;
(14) on July 23, 1998, he was issued a Notice of Removal;
(15) on February 6, 1999, he was denied FMLA request;
(16) on February 18, 1999, he was issued a Notice of Removal; and
(17) on February 10, 1999, he was harassed at his residence from the
Rockville Post Office Personnel office (Silver Spring Post Office).
On January 9, 2002, the agency issued a final decision dismissing
claims (1) - (7), and claims (10) - (16) pursuant to 29 C.F.R. �
1614.107(a)(1) for stating the same claims raised in his previous
complaints. Specifically, the agency stated that complainant raised
the same matters in a prior complaint, Agency No. 4K-200-0068-01, that
was pending before, or was decided by, the agency or the Commission.
The agency also dismissed claims (1) - (15) pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely EEO Counselor contact. Specifically, the
agency determined that complainant's April 4, 1999 EEO Counselor contact
was beyond the forty-five-day time limitation period with respect to
these claims.
Finally, the agency dismissed claim (17) pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. The agency found that
complainant failed to show how the alleged incident resulted in a harm
or loss regarding a term, condition, or privilege of his employment.
The agency noted that complainant did not indicate what particular
actions were taken against him that would warrant a finding of harassment.
The record indicates that in the prior complaint referenced by the
agency in dismissing claims (1) - (7) and claims (10) - (16), (Agency
No. 4K-200-0068-01), complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ docketed complainant's case as
Hearing No. 120-A2-1064X. The record contains an Order for Agency
No. 4K-200-0068-01, issued by the AJ on March 20, 2002. Therein, the
AJ lists 24 issues to be investigated.
Claims (1) - (6) and (11) - (16)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
Upon review, we find that the agency properly dismissed claims (1) - (6)
and (11) - (16) for stating the same claims raised in a prior complaint.
The AJ's March 20, 2002 Order in Agency No. 4K-200-0068-01, referenced
above, identifies claims to be investigated that are identical to those
raised in claims (1) - (6) and (11) - (16). The agency's dismissal of
the instant claims for raising the same matters that were raised in a
prior complaint was proper and is AFFIRMED.
Because we affirm the agency's decision to dismiss the above referenced
claims for the reason stated herein, we find it unnecessary to address the
agency's alternative dismissal grounds for claims (1) - (6), and claims
(11) - (15) (untimely EEO Counselor contact).
Claims (7) - (10)
The agency dismissed these claims on the grounds that complainant did not
timely contact an EEO Counselor. The record reflects that complainant
initiated EEO Counselor contact in April 1999, more than forty-five
days after the alleged discriminatory events identified in claims (7) -
(10) purportedly occurred. Complainant has failed to present adequate
justification pursuant to 29 C.F.R. �1614.105(a)(2), for extending the
limitation period beyond forty-five days. Accordingly, the agency's
decision to dismiss claims (7) - 10) failure to initiate contact with
an EEO Counselor in a timely fashion was proper and is AFFIRMED.
Because we affirm the agency's dismissal of claims (7) - (10) for the
reason stated herein, we find it unnecessary to address the agency's
alternative dismissal grounds regarding some of these claims.
Claim (17)
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 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).
Based on a review of the record, the Commission finds that claim (17)
was properly dismissed for failure to state a claim. Complainant failed
to show that he suffered harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy. Therefore,
the agency's decision to dismiss claim (17) for failure to state a claim
was proper and is AFFIRMED.
Accordingly, the agency's dismissal of claims (1) - (17) 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 18, 2003
__________________
Date