01a52297
05-20-2005
Jack Neuman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jack Neuman v. United States Postal Service
01A52297
May 20, 2005
.
Jack Neuman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52297
Agency No. 4F-8520004-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 3, 2005, 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. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. The agency defined the claim as whether complainant
was subjected to discrimination on the bases of age (D.O.B. 10/04/52)
and reprisal for prior EEO activity when on September 17, 2004, he was
issued a Notice of Proposed Adverse Action Removal dated September 14,
2004, charging him with Unacceptable Conduct, Improper Influencing of
Employee's Testimony, Appearance of Impropriety, and Failure to Follow
Proper Procedures.
The agency dismissed the claim pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1) for failure to state a claim and 29 C.F.R. � 1614.107(a)(5)
which states that an agency shall dismiss a complaint that alleges a
proposal to take a personnel action, or other preliminary step to taking
a personnel action is discriminatory. The agency concluded that since
complainant was unable to show that he suffered any concrete harm he is
not an aggrieved employee.
On appeal, complainant contends that the agency misdefined his issue.
According to complainant, the agency has harassed and retaliated
against him as a result of his participation in EEO cases filed by
other employees. Complainant argues that he has suffered harm when
he was removed from his position and placed on Administrative leave,
lost 90 hours of Annual leave, denied an 8 percent merit increase and
removed from consideration to an Executive position. Complainant also
argues that he has suffered emotional and physical harm and has incurred
$20,000.00 in legal fees.
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. 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 Commission finds that the agency properly defined and dismissed
complainant's complaint. There is no evidence in the record to show
that complainant was subjected to any adverse action with respect
to a term, condition or privilege of employment as a result of being
issued the Notice of Proposed Removal. Complainant has not alleged
that he was removed from agency employment. Regarding complainant's
contention on appeal, citing numerous claims of harassment, we find
that there is no mention of any of these claims in complainant's request
for EEO counseling, the EEO Counselor's Report or the Formal Complaint.
Our review of the record reveals that these claims were made for the first
time on appeal. The Commission does not consider these incidents to be
part of complainant's claim regarding his Notice of Proposed Removal.
Because of our disposition in this case, we do not consider whether 29
C.F.R. � 1614.107(a)(5) was an appropriate ground for dismissal.
Accordingly, the agency's decision dismissing the 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
May 20, 2005
__________________
Date