01a44715
10-27-2004
Joel H. Grice, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joel H. Grice v. United States Postal Service
01A44715
October 27, 2004
.
Joel H. Grice,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44715
Agency No. 1A-066-0012-04
DECISION
Complainant filed an appeal with this Commission from an agency decision,
dated May 21, 2004, pertaining to 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 Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On April 6, 2004, complainant contacted the EEO office regarding claims
of retaliation. Informal efforts to resolve complainant's concerns
were unsuccessful. On May 17, 2004, complainant filed a formal complaint.
In its May 21, 2004 final decision, the agency determined that
complainant's complaint was comprised of the following claim:
Complainant was issued a Notice of Removal dated March 14, 2002 (effective
April 18, 2002).
The agency dismissed the complaint for failure to state a claim.
The agency reasoned that although complainant cited retaliation as
the basis to his complaint, his records failed to indicate any prior
EEO activity.
On appeal, regarding his basis of retaliation, complainant states �the
fact that I had no prior EEO involvement lets you know that I do not
deal in petty matters.�
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).
Here, complainant stated that he was discriminated against based on
retaliation. The agency, however, dismissed the complaint on the ground
that complainant's records failed to indicate any prior EEO activity.
Further, as noted above, complainant does not challenge the agency's
finding. Therefore, the Commission finds that complainant's complaint of
retaliation lacks the requisite prior EEO activity necessary for stating
a retaliation claim. The agency properly dismissed the complaint,
based solely on retaliation, for failure to state a claim.<1>
Accordingly, the agency's decision dismissing the instant complaint for
failure to state a claim 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
October 27, 2004
__________________
Date
1Because of our disposition the Commission does not consider whether
the complaint was properly dismissed on alternative grounds.