01a52608
07-11-2005
Ken Steiner, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Region) Agency.
Ken Steiner v. United States Postal Service
01A52608
July 11, 2005
.
Ken Steiner,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Region)
Agency.
Appeal No. 01A52608
Agency No. 1H-337-0010-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 27, 2005, dismissing his individual complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
This complaint was originally sent to an EEOC Administrative Judge
(AJ) for class certification. The AJ found that this complaint did
not meet the standard for class certification because it failed to meet
the requirements of numerosity, commonality, typicality, and adequacy
of representation. The agency implemented the AJ's decision dismissing
the class complaint.
Complainant, the class agent, did not file an appeal of the agency's final
action on his class complaint. Therefore, the agency began processing
his individual complaint. On December 27, 2004, the agency requested
that complainant provide additional information because the class
complaint only addressed generalized issues. Complainant was given
fifteen calendar days from receipt of the letter plus an additional
five days for mailing, which meant that complainant's response needed
to be postmarked or received no later than January 18, 2005. Although
complainant allegedly faxed information on January 17, 2005, the agency
did not receive the facsimile until February 4, 2005. Based on the
untimeliness of complainant's response, we will only consider the issue
framed in the final agency decision dated January 27, 2005. According
to the agency's decision, complainant alleged discrimination when on
February 3, 2004, a supervisor threatened complainant with discipline.
The agency dismissed the complaint for failure to state a claim pursuant
to 29 C.F.R. � 1614.107(a)(1) and for proposing to take a personnel
action pursuant to 29 C.F.R. � 1614.107(a)(5).
The Commission finds that complainant fails to state a claim under the
EEOC regulations because complainant failed to show how he suffered a harm
or loss with respect to a term, condition, or privilege of employment for
which there is a remedy. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Even when given the opportunity
to supplement the record with additional information, complainant
failed to support it with evidence showing how the agency's actions
were sufficiently severe or pervasive to state a claim of harassment.
Given that we are dismissing the complaint for failure to state a claim,
we will not address the agency's other procedural ground for dismissal.
Accordingly, the agency's decision dismissing complainant's 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:
July 11, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations