0120121170
11-14-2012
Keith J. Mellon, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Keith J. Mellon,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120121170
Agency No. 4F-956-0145-11
DECISION
On January 3, 2012, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 8, 2011, dismissing his Equal Employment Opportunity (EEO) complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Highway Contractor out of the Agency's Coarsegold Post Office in Coarsegold, California.
On November 22, 2011, Complainant filed a formal complaint alleging that he was discriminated against by the Agency based on reprisal for challenging being given a PS Form 5500 --- a Contract Route Irregularity Report when the Postmaster:
1. Told him he could no longer come in earlier than 7 AM; and
2. Asked him if he labeled his "CBUs" and when he replied yes sneered at him and asked "are you sure?"1
The Agency dismissed the complaint for failure to state it claim. It reasoned that Complainant was a contractor, not an employee of the Agency; that he was not harmed and his complaint did not rise to the level of actionable harassment; and that he did not have any prior protected EEO activity upon which to base a claim of reprisal.
ANALYSIS AND FINDINGS
To state a claim of discrimination based on reprisal for prior protected EEO activity, Complainant generally must have somehow previously participated in the EEO complaint process or explicitly or implicitly communicated to the Agency that he believed it engaged in activity which violated an EEO statute enforced by the EEOC. EEOC Compliance Manual Section 8, "Retaliation," No. 915.003, at iii, iv (May 20, 1998)(available at eeoc.gov).
The Agency found that Complainant did not previously participate in the EEO complaint process, and he does not contest this. Complainant alleged in his complaint that the Postmaster retaliated against him because he challenged his being written up with the PS Form 5500, and the Postmaster does not tolerate being questioned or challenged. On appeal Complainant submits a copy of an email he wrote asserting that for some reason his successful challenge of the PS Form 5500 angered the Postmaster. Complainant, however, does not explicitly or implicitly communicate that his challenge was based on a statute enforced by the EEOC, i.e., does not allege that he communicated his challenge was based on a belief that he was discriminated against based on race, color, religion, sex, national origin, age, disability, sex based wage discrimination, or discrimination based on genetic information, or in retaliation for prior protected EEO activity. 29 C.F.R. � 1614.103.
Accordingly, Complainant's complaint fails to state a claim. 29 C.F.R. � 1614.107(a)(2).2
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
November 14, 2012
__________________
Date
1 The Agency found that Complainant also alleged in his complaint reprisal when the Agency gave him the PS Form 5500. On appeal Complainant clarifies that he successfully challenged this write up and his complaint regards reprisal for this challenge.
2 Because we have found that Complainant did not state a claim of reprisal discrimination we need not address whether his complaint also fails to state a claim for the other reasons cited by the Agency.
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01-2012-1170
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121170