01A11699_r
05-24-2001
Tommy Rivers, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Tommy Rivers v. United States Postal Service
01A11699
May 24, 2001
.
Tommy Rivers,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11699
Agency No. 1-G-771-0044-00
DECISION
Upon review, the Commission finds that the agency's decision dated May 12,
1999, dismissing complainant's complaint for failure to state a claim
is proper pursuant to 29 C.F.R. � 1614.107(a)(1). In his complaint,
complainant alleged discrimination in reprisal that on November 6, 1999,
he received notification that his periodic step increase was disallowed.
EEOC Regulation 29 C.F.R. �1614.101(b) provides, in part, that no
person shall be subject to retaliation for opposing any practice made
unlawful by Title VII, the Age Discrimination in Employment Act, or the
Rehabilitation Act or for participating in any stage of administrative
or judicial proceedings under those statutes. In its decision, the
agency stated that complainant had not engaged in any prior EEO activity.
There is no evidence in the record that complainant filed any previous
EEO complaints, or engaged in any other protected activity covered under
the regulations. On appeal, complainant contends that he was disallowed
his step increase due to the outcome of another EEO case which was filed
by another agency employee which was subsequently settled.<1>
We note, however, that complainant does not indicate that he participated
in the EEO case of the identified third party or that he otherwise
participated in protected activity. Accordingly, the agency's decision
is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 24, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The record contains a copy of the subject settlement agreement
dated October 26, 1999, which was entered by an identified individual
and the agency in order to resolve that individual's EEO complaint.
The settlement agreement provided that the identified individual and
all current part-time flexible Motor Vehicle Operator, L-5, would be
promoted effective November 6, 1999, to part-time flexible Tractor
Trailer Operator, L-6, without back pay.