William S. Gorrell, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.

Equal Employment Opportunity CommissionOct 12, 2011
0120112683 (E.E.O.C. Oct. 12, 2011)

0120112683

10-12-2011

William S. Gorrell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.




William S. Gorrell,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service,

(Capital Metro Area),

Agency.

Appeal No. 0120112683

Agency No. 4K230005911

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

decision dated March 28, 2011, 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.

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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked

as a City Carrier at the Agency’s Bon Air Station facility in Richmond,

Virginia.

On March 18, 2011, Complainant filed a formal complaint alleging

that the Agency subjected him to discrimination on the bases of race

(Caucasian) and sex (male) when, since December 14, 2010, employees with

earlier start times receive more overtime, more favorable assignments,

and are given more time to complete their assignments than Complainant.

The Agency dismissed the matter for failure to state a claim. The instant

appeal followed without comment.

ANALYSIS AND FINDINGS

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). When the complainant does not

allege he or she is aggrieved within the meaning of the regulations,

the agency shall dismiss the complaint for failure to state a claim

pursuant to 29 C.F.R. § 1614.107(a)(1).

A fair reading of the instant complaint reveals that although Complainant

checked the boxes to assert disparate treatment because of his race and

gender, he is actually alleging disparate treatment based on employee

start time. As relief, Complainant requested, in pertinent part:

“Same starting time for everyone, no exceptions.” Thus, we find

that Complainant is alleging that employees with early start times,

regardless of their race or gender, are treated more favorably than

those with later start times like himself.1 As such, Complainant has

not stated a claim under Title VII.

Accordingly, the Agency's final decision dismissing Complainant's

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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 (S0610)

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 (Z0610)

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

October 12, 2011

__________________

Date

1 Moreover, Complainant has not alleged that white males are more likely

to have later start times than other employees.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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