0120111909
02-09-2012
Paul Beer, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Paul Beer,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120111909
Agency No. 1J-483-0077-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
February 16, 2011 decision 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq.1 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 Registry Clerk at the Agency’s George W. Young facility in Detroit,
Michigan. On December 31, 2010, Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination on the bases of
race (Caucasian), sex (male), and age (over 40) when, on August 5, 2010,
he was called into an office and threatened with discipline because he
reported mail delay in his work unit.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. The Agency determined that there was no
evidence that Complainant was disciplined or otherwise harmed. Thus,
the Agency determined that Complainant was not aggrieved and had therefore
failed to state a claim. In addition, the Agency noted that Complainant
raised the issue of “removal of his computer access” during the
counseling stage, but failed to raise this claim in his formal complaint.
Thus, the Agency found that Complainant abandoned this claim.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency incorrectly dismissed his
complaint and failed to sufficiently address his claims concerning the
Agency’s treatment towards him after he reported the mail delay.
Complainant contends that he was subjected to discrimination by
management with the threat of disciplinary action and refusal to mediate
his complaint. In addition, Complainant again raised the removal of his
computer access. Accordingly, Complainant requests that the Commission
reverse the Agency’s dismissal.
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; 29 C.F.R. 1613 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. Dep’t
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
As an initial matter, during EEO counseling, Complainant discussed
the issue of the Agency’s removal of his computer access. However,
Complainant failed to raise this matter in his formal complaint.
The Commission has long held that where a Complainant raises a matter at
counseling but later does not include that issue in the formal complaint,
he/she cannot resurrect it later during processing or file another
complaint concerning the abandoned claim. See Cahill v. U.S. Postal
Serv., EEOC Appeal No. 0120111604 (Oct. 7, 2011); Small v. U.S. Postal
Serv., EEOC Request No. 05980289 (July 16, 1999); Robinson v. Peace
Corps., EEOC Request No. 05940710 (May 2, 1995). Thus, the Commission
finds that this issue was abandoned.
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. Although Complainant states that he was threatened
with disciplinary action if he continued to report delays in mail, the
record reflects that the Agency did not issue any disciplinary action.
As such, the threat of discipline alone is insufficient to show that
the Complainant suffered a present harm or loss with respect to a term,
condition, or privilege or employment. See Pelkowski v. Dep’t of the
Army, EEOC Appeal No. 0120100296 (May 13, 2011); Benn v. U.S. Postal
Serv., EEOC Appeal No. 0120102216 (Aug. 25, 2010); Debord v. U.S. Postal
Serv., EEOC Appeal No. 0120100074 (Mar. 18, 2010).
Finally, with respect to Complainant's contention that he is “entitled
to a REDRESS/mediation between himself, a mediator and the charged
parties,” the Commission finds Complainant’s contention also fails to
state a claim. An Agency decision not to engage in a mediation program
or make such a program available for a case cannot be made the subject
of an EEO complaint. See Dehrer v. Dep’t of Homeland Sec., EEOC Appeal
No. 01A44680 (Sept. 7, 2004); Fratini v. U.S. Postal Serv., EEOC Request
No. 05A30246 (Mar. 26, 2003); see also EEOC Management Directive 110
(EEO-MD-110), Ch. 3(II)(A)(4) (Nov. 9, 1999). 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 (Nov. 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
February 9, 2012
Date
1 The Agency initially issued a decision dismissing Complainant’s
complaint on January 21, 2011, which contained numerous inaccuracies.
The Agency subsequently issued a revised decision on February 16, 2011,
from which Complainant now appeals.
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0120111909
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111909