0120090918
04-29-2009
Terry L. Moneyham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terry L. Moneyham,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090918
Agency No. 4G752042508
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 10, 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.
Complainant did not present any arguments in his appeal. Upon review,
the Commission finds that complainant's complaint was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
In a complaint dated November 17, 2008, complainant alleged that he was
subjected to discrimination on the bases of race (African-American) and
religion (Baptist) when he was told to remove unauthorized headwear on
September 4, 2008.1
The Commission concurs with the agency that the complaint fails to state a
claim under the EEOC regulations because complainant has not alleged that
he suffered 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). Complainant has
not alleged, for example, that he was seeking a religious accommodation to
wear the unauthorized headwear or explained how the headwear in question
was connected to his race.
In his complaint complainant points to another letter carrier who
was allowed to wear a turban, apparently as a religious accommodation.
However, to the extent he is challenging another employee's accommodation,
such actions are not discriminatory since it is mandated by law
as well as pertinent EEOC regulations. See EEO Compliance Manual on
"Religious Discrimination", Notice No. 915.003, pg. 63 (July 28, 2008);
Sanders v. Dept. of Health and Human Services, EEOC Request No. 05890906
(Feb. 8, 1990). Therefore, even accepting the facts as presented by
complainant as true, this is a claim upon which he cannot prevail.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 29, 2009
__________________
Date
1 Complainant also raised an allegation in his complaint of
dissatisfaction with the scheduling of a mediation session under
the agency's REDRESS program. In its dismissal decision, the agency
properly indicated that it would process this issue in accordance with
the separate procedures outlined in EEOC's Management Directive (MD)-110
at 5-25 (November 9, 1999).
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0120090918
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090918