01a53167
07-28-2005
Horace House, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area) Agency.
Horace House v. United States Postal Service
01A53167
July 28, 2005
.
Horace House,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area)
Agency.
Appeal No. 01A53167
Agency No. 4F-945-0031-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 16, 2005, 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 dated February 4, 2005, complainant alleged that he was
subjected to discrimination on the bases of race (African-American),
sex (male), religion (Muslim), color (not specified), and in reprisal
for prior EEO activity (arising under Title VII) when: (1) a manager
did not return a copy of his submitted P.S. 9771 Form (Request for or
Notification of Absence); (2) a Just Cause interview was held on October
15, 2004 after the Complainant took an additional week of leave<0>;
(3) payment was delayed for services rendered; and (4) another manager
said, �We replace nobody; we work you �til you turn blue,� in response
to complainant inquiries about a staff increase.
Complainant originally filed his complaint with the agency on February 4,
2005. The agency issued a final decision on March 16, 2005, dismissing
the complaint for failure to state a claim. The decision relied in
large part on the agency's contention that complainant did not receive
any disciplinary action or other adverse employment action.
EEOC's regulations authorize an agency to dismiss an EEO complaint
that fails to state a claim for which relief can be granted. See 29
C.F.R. � 1614.107(a)(1). The standard that must be met to justify a
dismissal on this ground is similar to that required by the courts under
Fed. R. Civ. P. 12(b)(6). See Cobb v. Dep't of the Treasury, EEOC Request
No. 0597007 (Mar. 13, 1997). Under Section 107(a) the allegations in
a complaint must be taken as true and all reasonable inferences must
be drawn in favor of the complainant. Id. It is well settled that a
complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that no set of facts can be established that
would entitle the complainant to the relief sought in the complaint.
Id. (citing Conley v. Gibson, 355 U.S. 40, 45-46 (1957)).
In regard to the first incident, in which a manager did not return
complainant's P.S. 9771 Form, we find that complainant's terms, conditions
and privileges of employment were not affected to any degree, and thus
no claim is stated. See Diaz v. Dep't. of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994). Likewise, the Just Cause interview,
held on October 15, 2004 after complainant returned from vacation, was
unaccompanied by any disciplinary action, as acknowledged by complainant
in his April 15, 2005 response to the FAD.<0> Additionally, we find
that this Just Cause interview can be seen as an intermediate step in
the manager's process of deciding whether or not to take disciplinary
action against Complainant. EEOC Regulation � 1614.107(a)(5) provides,
in part, that such claims that are based on a preliminary step to taking
a personnel action should be dismissed.
Regarding the issue of slow payment for services rendered on January 14,
2005<0>, the incident supposedly came about through complainant's own
error. He incorrectly input his work hours into the time-keeping system.
The mistake became compounded when the usual administrative oversight
failed to catch the error due to the Martin Luther King Jr. Holiday
and complainant's subsequent retirement. See Agency's letter to the
Regional Investigator for OSHA/Region IX of 3/24/05. We find that
these facts render this issue moot and dismissible pursuant to 29 C.F.R
1614.107(a)(5). In Los Angeles County v. Davis, 440 U.S. 625 (1979), the
Supreme Court held that a case could be dismissed for mootness if: (1)
�it can be said with assurance that �there is no reasonable expectation
. . .' that the alleged violation will recur; and (2) interim relief or
events have completely and irrevocably eradicated the effects of the
alleged violation.� 440 U.S. at 630 (quotations omitted). As noted,
complainant no longer works at the agency and the agency eventually
made payment-in-full. These facts lead us to believe that there is
a reasonable assurance that that the alleged violation will not recur
and events have occurred that have completely eradicated the effects
of the alleged violation. See Silverman v. Dep't of Homeland Security,
EEOC Appeal No. 01A33571 (Feb. 18, 2004) (finding, among other things,
that because complainant retired from agency, the complaint was properly
dismissed as moot).
Lastly, as regards the comment a manager made to complainant: �We replace
nobody; we work you �til you turn blue.� Even assuming the comment were
true and drawing all reasonable inferences in favor of complainant, the
Commission has consistently held that a remark or comment unaccompanied by
any concrete effect does not render complainant aggrieved. See Shelborne
v. United States Postal Serv., EEOC Request No. 05A30398 (Dec. 16,
2004); Backo v. United States Postal Serv., EEOC Request No. 05960227
(June 10, 1996).
It is possible for an employee to be considered aggrieved, even absent
a claim that an agency's action harmed complainant in a specific term,
condition, or privilege of employment, as long as complainant can
otherwise demonstrate that the conduct was engaged in with the purpose
of creating a hostile work environment, and also that the conduct
was sufficiently severe or pervasive as to alter the conditions of
complainant's employment. See Harris v. Forklift Systems, Inc., 510
U.S. 17 (Nov. 9, 1993); see also Cobb v. Dep't of the Treasury, EEOC
Request No. 05970077 (Mar. 13, 1997). In the case-at-hand, taking at
face value all of the abovementioned occurrences, they were isolated
incidents that were not sufficiently severe or pervasive as to rise to
the level of stating a claim.
Accordingly, Complainant therefore fails to state an actionable claim,
and the agency's final decision dismissing complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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
July 28, 2005
__________________
Date
0 1This issue was raised, at least indirectly,
by the Complainant in the complaint and in supporting documents such
as the Counselor's Report and in the FAD.
0 2According to the EEO Dispute Resolution Specialist's Inquiry Report,
a supervisor stated that although complainant had asked for an additional
week of leave, the request was turned down because the agency lacked
sufficient manpower. The supervisor explained that complainant took the
time-off anyway, so the supervisor conducted a Just Cause interview to
learn why. The supervisor did not initiate disciplinary action against
complainant
0 3The exact date is unclear as complainant did not identify a date in his
formal complaint. We deduce that the incident took place on January 14,
2005 from an agency letter dated March 24, 2005 addressed to the Regional
Investigator for OSHA/Region IX which refers to the incident.