01982984
06-27-2000
Joe H. Daniel, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joe H. Daniel v. United States Postal Service
01982984
June 27, 2000
Joe H. Daniel, )
Complainant, )
)
v. ) Appeal No. 01982984
) Agency No. 1D-276-0003-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that claims 1 - 4 in complainant's
complaint were properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.107(a)(1)).<1>
Complainant alleged that he was discriminated against on the bases of
his race, color, sex, age and reprisal when:
(1) on October 15, 1997, he had to wait five minutes to speak with his
wife and tell her that their daughter was sick;
(2) on October 16, 1997, he went to his wife's work unit to bring her
some personal information and was told by the supervisor she preferred
to give the information to his wife rather than have complainant give
the information to her;
(3) on October 21,1997, he went to the CFS Unit to give his wife some
money and was told by the supervisor he would have to see his wife later
when she got off work at 3:30;
(4) on October 21, 1997, he was approached by Labor Relations Specialist
and spoken to in a demanding and disrespectful manner and told he could
not enter the cafeteria or workroom floor area unless he was on the
clock; and
(5) on October 23, 1997, he was issued a letter of warning for disrupting
the CFS Unit.
The agency accepted claim 5 for investigation and dismissed claims 1 -
4 for failure to state a claim. Although direct appeals of decisions
partially dismissing a complaint are no longer permissible under the
regulations revised on November 9, 1999, the agency has informed the
Commission that accepted claim 5 was the subject of an agency decision
on May 20, 1999. The Commission notes that following complainant's
appeal, the Commission affirmed the final agency decision on claim 5.
Daniel v. USPS, EEOC Appeal No. 01995248 (March 2, 2000). The record
does not reflect that complainant initiated a request to reconsider
the Commission's decision of March 2, 2000. We shall consider the
instant appeal of the agency's dismissal of claims 1 - 4 because there
are apparently no remaining claims from the instant complaint pending
anywhere in the administrative EEO process.
EEOC Regulation 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 22, 1994).
Upon a review of the record, the Commission determines that none of
the matters address in claims 1 - 4 address a loss or harm regarding a
term, condition or privilege of complainant's employment. Moreover, on
appeal, no persuasive arguments or evidence have been presented regarding
whether complainant has stated a claim, i.e., to show that complainant
was injured by the incidents raised. Accordingly, the agency's final
decision dismissing claims 1 - 4 in complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 27, 2000
________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.