William Thornton,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120121366
Agency No. 1C-374-0008-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 10, 2012, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Maintenance Mechanic at the Agency's Memphis, Tennessee NDC facility.
On December 31, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the basis of reprisal when:
in Pay Period 19, he was charged 32 hours of Leave Without Pay (LWOP) instead of sick leave.
In its January 10, 2012 final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. 1614.107(a)(1) for failure to state a claim. The Agency found that in response to a supplemental questionnaire form clarifying his complaint, Complainant cited reprisal as the only basis of discrimination and that the reprisal was based on his "2010, Funeral Leave for Father } Agency Call Complainant Home." The Agency determined that the record indicated that Complainant had made reference to any prior EEO activity, and found that Complainant failed to cite a basis of discrimination within the purview of the Commission's statues and regulations.
In addition, the Agency found that Complainant's allegations regarding being charged 32 hours of LWOP instead of sick leave was corrected. Specifically, the Agency noted that the record reflects that on October 20, 2011, Complainant signed a PS Form 2240 "Pay, Leave, or Other Hours Adjustment Request" changing 32 hours of LWOP in Pay Period 19 to 32 hours of sick leave. The Agency determined that as a result, Complainant was not longer aggrieved by the matter alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that his supervisor "questioned me about when was I coming back to work during this stressful and difficult time, the same day of my father's burial. Due to the disrespect and lack of consideration of my family's loss, I filed an EEO complaint."
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, .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).
The Agency properly dismissed the instant formal complaint for failure to state a claim. Complainant alleged that he was discriminated against when he took leave for his father's funeral and his supervisor called him to find out when he would return to work. There is no allegation in the record that Complainant engaged in EEO or any other prior protected activity. When a complaint of reprisal is not based on prior EEO or other activity protected by Title VII, the complaint is not within the purview of Title VII and must be dismissed for failure to state a claim. See Bryant v. Department of Justice, EEOC Request No. 05980273 (June 4, 1999).
The Agency's final decision dismissing the instant formal complaint for failure to state a claim is AFFIRMED.
Because we affirm the Agency's dismissal for the reason stated herein, we will not address alternative dismissal grounds.
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
June 1, 2012
__________________
Date
2
0120121366
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121366
5
0120121366
Comments