0120072963
09-07-2007
Bruce L. Miller, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bruce L. Miller,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072963
Agency No. 1C-431-0014-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 18, 2007, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (White) and sex (male) when:
1. On January 4 and 5, 2007, complainant was given a pre-d, regarding
parking in front of the building, and
2. On February 20, 2007 and everyday, minority employees are given special
privileges and allowed to break all regulations and complainant is not.
We note in addition complainant added a statement to his formal complaint
indicating that he mailed the Plant Manager a letter in May 2007;
however complainant was concerned with how that letter was processed.
The agency dismissed the complaint for failure to state a claim pursuant
to 29 C.F.R. � 1614.107(a)(1). The agency noted that complainant did
not show that he was aggrieved.
Complainant appealed the agency's dismissal. On appeal, complainant
indicated that he has withdrawn claim (1) regarding the pre-D.
Complainant provides a copy of an "anonymous" letter dated January 17,
2007, regarding unfair practices at the agency. We note that this letter
is different from the letter complainant raised in his narrative provided
in support of his formal complaint. In addition, complainant provided a
series of memoranda signed by co-workers regarding management's reaction
to complainant's anonymous letter which occurred on February 1, 2007.
Therefore, complainant requested that the Commission amend his complaint
to include the events of February 1, 2007 as his claim of harassment.
Since complainant has withdrawn claim (1), we will not address the
agency's dismissal of that claim. As to complainant's claim regarding
the events of February 1, 2007, we note that the first time complainant
raises this issue is on appeal. There is no indication in the record
that complainant raised this issue with the EEO Counselor nor in his
formal complaint. We find that it was inappropriate for complainant to
raise this issue for the first time on appeal. Therefore, we shall not
address complainant's claim of harassment as a result of his anonymous
letter dated January 17, 2007. Therefore, the only issue before the
Commission is claim (2).
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 Commission finds that complainant's claim (2) is a generalized
grievance and, therefore, fails to state a claim. Complainant failed
to identify a specific harm that he sustained. Complainant cannot
pursue a generalized grievance that members of one protected group
are afforded benefits not offered to other protected groups, unless he
further alleges some specific injury to him as a result of the alleged
discriminatory practice. See Warth v. Seldin, 422 U.S. 490, 499 (1975);
Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508
(September 11, 1997) (claim that nurse practitioners in one unit received
more favorable treatment than nurse practitioners in other units was
a generalized grievance); Rodriguez v. Department of the Treasury, EEOC
Appeal No. 01970736 (August 28, 1997) (a claim that there was an imbalance
in favor of African-Americans and against Hispanics in developmental and
promotional opportunities was a generalized grievance unless complainant
can identify a specific harm which she sustained). Therefore, we find that
the agency's final decision dismissing the complaint was appropriate.
Accordingly, we AFFIRM the agency's final decision dismissing the
complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
September 7, 2007
__________________
Date
2
0120072963
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072963