01a51533
03-10-2005
Timothy Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Timothy Walker v. United States Postal Service
01A51533
March 10, 2005
.
Timothy Walker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51533
Agency No. 4H-370-0165-04
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated November 23, 2004, regarding a formal complaint
of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On August 2, 2004, complainant contacted the EEO office regarding claims
of discrimination based on age and disability. Informal efforts to
resolve complainant's concerns were unsuccessful. On November 10, 2004,
complainant filed the instant formal complaint.
In its November 23, 2004 final decision, the agency determined that
complainant's complaint was comprised of the following claim:
On August 7, 2004, management announced during a stand-up talk that the
ASP training program would begin on August 9, 2004, and that candidates
had already been selected from an application process that occurred
in September 2002, which prevented limited duty employees who were
notified in April 2004, that their positions were to be excessed from
consideration.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact. The agency found that the allegedly discriminatory
action occurred in September 2002, when the ASP Program was open for
applications. The agency noted that complainant did not apply for the
program at that time. Therefore, the agency concluded that complainant's
August 2, 2004 contact was 23 months after the discriminatory event.
As a preliminary matter, we find that a fair reading of the formal
complaint reflects that complainant claims that the alleged discriminatory
action was its failure to repost the ASP Program so that limited duty
personnel, who had their positions outsourced in April 2004, could
apply. Complainant highlights that �[t]he last posting for the ASP
program ... was in September 2002. Almost 23 months ago.�
While the agency dismissed the complaint on the grounds of untimely
EEO Counselor contact, the Commission determines that the complaint
is more appropriately analyzed in terms of whether it states a claim.
As noted above, complainant stated in his formal complaint that by not
re-posting the program the agency is �denying the limited duty personnel
an opportunity to save their employment with the USPS.� Moreover,
throughout the formal complaint, rather than describing individual harm,
complainant asserted harm to �limited duty employees.� The Commission
finds that the complaint is a generalized grievance and fails to state a
claim. Complainant failed to identify a specific harm that he sustained.
Complainant cannot pursue a generalized grievance that members of one
protected group are afforded benefits not offered to other protected
groups, unless he further alleges some specific injury to him as a
result of the alleged discriminatory practice. See Warth v. Seldin, 422
U.S. 490, 499 (1975); Crandall v. Department of Veterans Affairs, EEOC
Request No. 05970508 (September 11, 1997) (claim that nurse practitioners
in one unit received more favorable treatment than nurse practitioners in
other units was a generalized grievance); Rodriguez v. Department of the
Treasury, EEOC Appeal No. 01970736 (August 28, 1997) (claim that there
was an imbalance in favoring of African-Americans, against Hispanics,
in development and promotion opportunities was a generalized grievance
purportedly shared by all Hispanic co-workers and therefore failed to
state a claim).
Accordingly, the agency's decision to dismiss the complaint 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
March 10, 2005
__________________
Date