Earl Andorf, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 4, 2000
01992935 (E.E.O.C. Feb. 4, 2000)

01992935

02-04-2000

Earl Andorf, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Earl Andorf, )

Complainant, )

)

v. ) Appeal No. 01992935

) Agency No. 1F-953�0004-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

INTRODUCTION

On February 24, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) pertaining to his complaint

of unlawful employment discrimination.<1>

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed complainant's

complaint for failure to state a claim.

BACKGROUND

On January 7, 1999, complainant filed a formal complaint alleging

that he was the victim of unlawful employment discrimination when, on

October 29, 1998, the agency returned his suggestion (idea proposal)

to him unsigned, undated, and unadopted. Complainant claimed that the

suggestion was not given proper consideration and that the agency's

suggestion program was flawed. He did not cite a basis for the alleged

discrimination although the agency requested that he do so. Instead,

complainant indicated that the significant factor was that the agency

treated him different from its other employees and that it is unnecessary

for such treatment to fit under a basis of EEO discrimination.

The agency issued a final agency decision (FAD) on February 5, 1999

dismissing complainant's complaint for failure to state a claim.

This appeal followed.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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 22,

1994).

Complainant filed a complaint alleging employment discrimination. In it

he failed to provide a basis for the agency's alleged discrimination

although it requested this information from him on more than one occasion.

Complainant indicated the fact that he was treated differently alone

warranted his complaint. He further stated that it was not necessary for

the treatment to fit under a basis of discrimination. The Commission

has authority to prohibit discrimination in employment based on race,

color, religion, sex, national origin, age, or handicap and to prevent

retaliation for opposing any practice made unlawful by Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq.; the Equal Pay Act, as amended, 29 U.S.C. 206(d); and Section

501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.

See 29 C.F.R. � 1614.101; EEOC Management Directive (MD) 110, as revised,

November 9, 1999. Consequently, complainant did not identify a basis

over which the Commission has jurisdiction. Accordingly, the agency's

decision to dismiss complainant's complaint is affirmed.

CONCLUSION

It is the decision of the Commission to AFFIRM the agency's dismissal

of complainant's complaint.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Feb. 4, 2000

_______________ __________________________

Date 1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at WWW.EEOC.GOV.