01A44385_r
11-10-2004
Michael A. Mews, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael A. Mews v. United States Postal Service
01A44385
November 10, 2004
.
Michael A. Mews,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44385
Agency No. 4E-970-0050-04
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision, dated May 21, 2004, dismissing his formal complaint of unlawful
employment discrimination in violation Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On February 19, 2004, complainant initiated contact with an agency
EEO office. Complainant claimed that he was discriminated against when:
(1) On January 23, 2004, he was given a discussion regarding his
performance;
(2) On March 5, 2004, the Postmaster conducted a street observation
instead of the supervisor;
(3) On March 5, 2004, he was secretly observed by his supervisor.
Informal efforts to resolve the matter resulted in a settlement
agreement dated March 12, 2004. However, by letter dated March 23,
2004, complainant alleged breach of the agreement. The agency agreed
that the agreement was breached and, in a letter dated April 6, 2004,
issued complainant a Notice of Right to File Individual Complaint.
On April 14, 2004, complainant filed the instant formal complaint
containing claims (1) through (3), as discussed above. Moreover,
complainant added the following claim:
(4) On March 18, 2004, the settlement agreement of March 12, 2004
was breached.
On May 21, 2004, the agency issued a final decision dismissing the
complaint for failure to state a claim. Regarding claim (1), the
agency found that official discussions alone do not render an employee
aggrieved. Regarding claims (2) and (3), the agency found no evidence
that the observations caused complainant to suffer any measurable personal
harm. Finally, regarding the alleged breach of settlement set forth in
claim (4), the agency stated that it previously determined a breach had
occurred and reinstated the instant complaint for further processing.
Claim (1)
As noted above, complainant contends that he suffered discrimination when
he was given a discussion on his performance. This Commission has held
that official discussions alone do not render an employee aggrieved.
See Miranda v. United States Postal Service, EEOC Request No. 05920308
(June 11, 1992); Devine v. United States Postal Service, EEOC Request
No. 05910269 (April 4, 1991). In the present case, we find no claim
by complainant that the discussion was recorded in any personnel or
supervisory files, nor that it can be used as a basis for any subsequent
disciplinary action. See Devine, supra.
Claims (2) and (3)
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).
Complainant claims that the Postmaster conducted a street observation
and that he was secretly observed by his supervisor. We agree with
the agency, that complainant has failed to establish that he suffered a
personal loss or harm regarding a term, condition or privilege of his
employment as a result of these observations. Moreover, a review of
the record reflects that the matters in question are insufficient to
support a claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Claim (4)
Complainant stated in claim (4) that the agency breached the March 12,
2004 settlement agreement; however, the agency agreed that a breach
occurred and as a result reinstated the instant complaint. The record
contains a April 6, 2004 letter to complainant, informing him that �[a]s
there is no disagreement that the March 12, 2004 settlement agreement
was breached, by this letter I am issuing you your right to continue
processing of your complaint.� Thereafter, complainant filed the formal
complaint that is the subject of the instant appeal. The Commission
finds that the breach claim was resolved by the continued processing of
the complaint, and was properly dismissed.
Accordingly, the agency's decision was proper and 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
November 10, 2004
__________________
Date