01A15118_r
12-11-2001
Keith L. Kloock, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Keith L. Kloock v. United States Postal Service
01A15118
December 11, 2001
.
Keith L. Kloock,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A15118
Agency No. 4-J-481-0087-01
DECISION
Complainant timely appealed to this Commission from the agency's August 6,
2001 dismissal of his employment discrimination complaint for stating
the same claim raised in Agency No. 4-J-1811-93. In his complaint,
complainant alleged harm on the basis of reprisal for prior EEO activity
when in March 2001, he was denied official time on the clock after
being selected as an EEO representative. In Agency No. 4-J-1811-93,
complainant alleged breach of a settlement agreement that concerned
providing complainant with a reasonable amount of official time to act
as an EEO representative.<1>
The Commission finds that complainant has not alleged the same claim
previously raised. However, the Commission finds that the claim is more
properly analyzed for whether it states a claim pursuant to 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 does not have standing to challenge the denial of official
time to work on another individual's EEO complaint. Such a claim lies
with the aggrieved, not with his or her representative. See Lambert
v. Social Security Administration, EEOC Request No. 05970586 (February
14, 1997) (citing Sessoms v. United States Postal Service, EEOC Appeal
No. 01973440 (June 11, 1998)). Therefore, the Commission finds that
complainant fails to state a claim, and the agency's dismissal is
AFFIRMED, albeit on different grounds.
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
December 11, 2001
__________________
Date
1On appeal, the Commission found that the
agency breached the agreement, and ordered it to reinstate complainant's
underlying complaint. See Kloock v. United States Postal Service,
EEOC Appeal No. 01933539 (October 1, 1993).