Ira Malmed, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W.), Agency.

Equal Employment Opportunity CommissionOct 15, 1999
01994926 (E.E.O.C. Oct. 15, 1999)

01994926

10-15-1999

Ira Malmed, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W.), Agency.


Ira Malmed v. United States Postal Service

01994926

Ira Malmed, )

Appellant, )

)

v. ) Appeal No. 01994926

) Agency No. 1-G-771-0026-99

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(S.E./S.W.), Agency. )

______________________________)

DECISION

On June 1, 1999, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) received on March 16, 1999, pertaining

to a complaint of unlawful employment discrimination pursuant to Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et

seq. The Commission accepts appellant's appeal in accordance with EEOC

No. 960.001.

The record reflects that on December 14, 1998, appellant initiated

contact with an EEO Counselor. Subsequently the counseling failed,

and on or about January 12, 1999, appellant filed a formal complaint

alleging the following issues, (1) that a co-worker was promoted to

acting supervisor, (2) that the plant manager refused to speak with him

and (3) that appellant's transfer request was denied.

The agency issued a final decision on March 12, 1999 dismissing

allegations one and two of appellant's complaint for failure to state

a claim. The agency found that appellant is not an "aggrieved employee"

because the above actions have not caused appellant to suffer a harm

or loss to a term, condition or privilege of his employment for which

there is a remedy. It is from this decision that appellant appeals.

On appeal, appellant admits that the impetus behind allegation one was

his disapproval of his co-worker being promoted. I quote, "The first

complaint I filed on [the supervisor] and asked for[my co-worker]to be

removed from supervisor, I made the request because I was very upset".

And allegation two was alleged because appellant wanted the plant manager

to meet with him. Again I quote, " I only filed a complaint on [the plant

manager] to get him to meet and talk with me but I was not successful".

The agency dismissed allegations one and two of appellant's complaint

because he failed to state a claim. EEOC Regulation 29 C.F.R. �1614.107(a)

provides, in relevant part, that an agency shall dismiss a complaint, or

portion thereof, 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; �1614.106(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).

In the present case, it is clear that appellant is not an "aggrieved

employee" under Diaz supra.. As per allegation one, appellant has failed

to demonstrate how a co-worker's promotion has caused him to suffer

a present loss or harm with respect to a term, condition or privilege

of his employment. In fact, appellant offers that he only filed the

allegation because he was upset. As per allegation two, appellant also

fails to demonstrate how the plant manager's alleged refusal to meet with

him caused him to suffer a present loss or harm to a term, condition or

privilege of his employment. Here, appellant offers that he only filed

the allegation against the plant manager with the expectation that he

would now meet with him. For these reasons, it is undisputably clear,

that appellant has not suffered a loss or harm with respect to a term,

condition or privilege of his employment for which there is a remedy,

thus, making him an "aggrieved employee". It is apparent that

allegations one and two are the product of appellant's dissatisfaction

with managements decision making and an attempt to influence the plant

manager to meet with him. Accordingly, the agency's decision to dismiss

allegations one and two above for failure to state a claim was proper

and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party WITHIN

TWENTY (20) CALENDAR DAYS of the date you receive the request to

reconsider. See 29 C.F.R. �1614.407. All requests and arguments must

bear proof of postmark and 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 filed on the date it is

received by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

FOR OFO INTERNAL CIRCULATION ONLY

FOR PROCEDURAL CASES

TO: CARLTON M. HADDEN, ACTING DIRECTOR

OFFICE OF FEDERAL OPERATIONS

APPEAL NUMBER: 01994926

AGENCY NUMBER: 1-G-771-0026-99

(APPROVED) (DATE)

REQUEST NUMBER:

HEARING NUMBER:

THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:

TITLE

NAMES

INITIAL

DATE REVIEWED

(ATTORNEY): Ralph A. Suris

October 15, 1999

(SUPERVISOR: Marjorie Borders

(DIVISION DIRECTOR):

1.) (APPELLANT(S) Ira Malmed

2.) (AGENCY) USPS

3.) (DECISION) AFFIRMED

4.) (STATUTE(S) Title VII

5.) (BASIS(ES) OR

6.) (ISSUE(S) A4 & O1

7.) (TYPIST/DATE/DISK) RS1/ October 15, 1999

SPELL CHECK: YES

(PLEASE CHECK ALL APPLICABLE CODES)

PROCEDURAL CODES

LETTER CLOSURE CODES

X 3K - PROCEDURAL DECISION

? 3N - APPEAL DENIED/DISMISSED

? 3P - ADVERSE INFERENCE RAISED

X 4H - OFO AFFIRMED FAD

? 3M - OFO REVERSED AND REMANDED

? 4J - OFO MODIFIED FAD

? 4Q - COMPLIANCE REQUIRED

? 3B - FAD RESCINDED

? 3C - DUPLICATE DOCKET NUMBER

? 3D - WITHDRAWAL

? 3E - COMPLAINT SETTLED

? 3G - OTHER LETTER CLOSURE

[REVISED AS OF 4/21/98]