01A22343
07-08-2002
Mario Quinones-Torres, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mario Quinones-Torres v. United States Postal Service
01A22343
07-08-02
.
Mario Quinones-Torres,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22343
Agency No. 1H-328-0017-02
DECISION
INTRODUCTION
Complainant filed an appeal with this Commission from a final agency
decision concerning 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 final agency decision (FAD) was
dated February 27, 2002, and received by complainant on March 4, 2002.
The appeal was postmarked March 14, 2002. Accordingly, the appeal
is timely and the Commission hereby accepts it in accordance with 29
C.F.R. �1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed
complainant's complaint for failure to state a claim.
BACKGROUND
In a complaint dated December 21, 2001, complainant alleged that he
was subjected to discrimination on the basis of reprisal for prior EEO
activity when, on September 19, 2001, a Management Official (MO) tried
to entrap him into signing a Last Chance Agreement. The agency asserts
that the MO had received a report from co-workers that the complainant
was calling in sick to his job at the agency and doing the same kind
of work at a second job. As a result, the MO states that a very long
investigation occurred and the conclusion was that removal of the
complainant was warranted. The complainant received a Proposed Letter
of Removal on May 15, 2001, which the MO subsequently agreed to reduce
to a Suspension and Last Chance Agreement. Following the reduction in
discipline, the action was grieved and was in the grievance process at
the time of the filing of the complainant's EEO claim. Complainant's
EEO complaint did not include the Proposed Letter of Removal or the
Suspension, but was confined to his claim that the MO tried to �entrap�
him into signing the Last Chance Agreement.
On February 27, 2002, the agency issued a FAD dismissing the claim for
failure to state a claim because the agency stated that the complainant
had not alleged that he suffered a personal loss or harm with respect to
a term, condition or privilege of employment as a result of the incident,
nor had the complainant presented evidence of any concrete harm as a
result of the incident.
ANALYSIS AND FINDINGS
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). In the instant case the Commission agrees
with the agency that the complainant has produced no evidence that he
has suffered a present harm or loss with respect to a term, condition,
or privilege of employment. The record shows that the complainant did
not sign the Last Chance Agreement, and thus, none of the consequences
of doing so affected the complainant. In addition, the record does
not reflect any harm or loss the complainant may have been subjected to
as a consequence of not signing the Last Chance Agreement. Therefore,
there is no present harm or loss which would render complainant aggrieved.
Accordingly, the agency's final 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____07-08-02______________
Date