0120082037
08-22-2008
Joseph Sino, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph Sino, III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082037
Agency No. 4G700003408
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 12, 2008, 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.
In his complaint dated February 26, 2008, complainant alleged that he
had been discriminated against when on November 2, 2007 he was placed
off the clock and ultimately removed from his position because he lied
on his application for employment. The agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. The agency found that complainant failed to identify a basis
in the formal complaint at issue in this matter.
A review of the record indicates that in his request for informal
counseling, complainant identified reprisal as the basis for his
discrimination complaint. However, during his meeting with the agency's
EEO Counselor, he was advised that his claim of reprisal discrimination
may not be accepted during the formal complaint stage, without any
prior EEO activity. Consequently, when complainant submitted his formal
complaint, he abandoned the reprisal basis and did not select any basis
for discrimination.
In its final decision, the agency determined that because complainant
failed to identify a protected basis on his formal discrimination
complaint, his complaint fails to state a claim within the purview of the
EEOC Regulations. EEOC Regulations require dismissal of complaints that
fail to state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,
complainant must allege present harm inflicted on the basis of race, sex,
religion, national origin, age, disability or prior protected activity.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
Complainant has failed to allege harm on a protected basis. Although
he identified reprisal as a basis in his informal counseling request,
complainant failed to identify a basis at all in his formal complaint.
In that regard, the Commission affirms the agency's decision dismissing
the instant complaint in accordance with EEOC Regulation 29 C.F.R. �
1614.107(a)(1).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 22, 2008
__________________
Date
2
0120082037
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120082037