Ira Malmed, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 19, 1999
01991088 (E.E.O.C. Nov. 19, 1999)

01991088

11-19-1999

Ira Malmed, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ira Malmed v. United States Postal Service

01991088

November 19, 1999

Ira Malmed, )

Complainant, )

)

v. ) Appeal No. 01991088

) Agency No. 1-G-771-0123-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

INTRODUCTION

On November 18, 1998, complainant filed a timely appeal with this

Commission from a final agency action pertaining to his complaint of

unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> In his

complaint, complainant alleged that he was subjected to discrimination

on the bases of race (white) and religion (Jewish) when he reported an

incident in which a coworker allegedly assaulted him to his supervisor

and the supervisor found complainant partially responsible for the

altercation. In addition, complainant's supervisor failed to take action

against the coworker.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed complainant's

complaint for failure to state a claim.

BACKGROUND

Complainant initiated EEO counseling on August 7, 1998, and thereafter

filed a formal complaint on September 8, 1998. In his complaint,

complainant alleged discrimination based on race (white) and religion

(Jewish) when, on August 6, 1998, complainant's supervisor found him

partially responsible for an incident he reported in which a coworker

allegedly assaulted him.<2> Further, the supervisor failed to take

action against complainant's coworker.

On November 6, 1998, the agency issued an action dismissing complainant's

complaint for failure to state a claim. This appeal followed.

ANALYSIS AND FINDINGS

Failure to State A Claim

EEOC Regulation 64 Fed. Reg. 37,644, 37, 656 (1999) (to be codified

as 29 C.F.R. �1614.107(a)(1)) 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(a), .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).

Where a complainant does not suffer a present harm or loss regarding

a term, condition, or privilege of employment, he or she may still be

aggrieved where the complaint claims, taken together and treated as

true, are sufficient to state a hostile or abusive environment claim.

See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997). A hostile or abusive work environment claim requires that

a complainant claim facts which, if proven true, may indicate that the

complainant was subjected to harassment that was severe or pervasive

enough to alter the conditions of his or her employment. Id. at 3.

In making such a determination, the Commission has considered "whether

a reasonable person in the complainant's circumstances would have found

the claimed behavior to be hostile or abusive." Id.

Complainant stated that he informed his supervisor of an incident in which

a coworker assaulted him. According to the record, on August 6, 1998, the

supervisor held a meeting with complainant, complainant's coworker, and a

union representative to address the encounter. At the conclusion of the

meeting, the supervisor found both complainant and his coworker at fault

for the incident. The supervisor did not take corrective action against

either employee because he felt he did not have sufficient information

to do so.<3> Accordingly, the agency's dismissal is affirmed.

CONCLUSION

It is the decision of the Commission to AFFIRM the agency's dismissal

of complainant's complaint for failure to state a claim.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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).

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:

Nov. 19, 1999 ____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

1On November 9, 1999, revised regulations governing the EEOC's Federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2According to a signed statement by the supervisor, complainant alleged

a previous incident with the same coworker six months earlier. In the

previous incident, the coworker allegedly asked complainant for twenty

dollars in exchange for his silence regarding complainant getting on the

clock five minutes early. When complainant did not have the money, the

coworker allegedly made an offensive remark and then reported complainant

to management for getting on the clock early.

3In the supervisor's signed statement, he indicated that he requested

the names of persons who witnessed the altercation from complainant.

He intended to use the names to complete an investigation of the claimd

incident. However, he never received any names. The supervisor found

an employee who overheard the incident and provided a written statement.

He also found two other employees who witnessed the incident and gave

oral statements, however, they failed to provide written statements.

According to the supervisor, the statements of all three witnesses

supported the coworker's written statement of what occurred.