01996888
05-03-2001
Jahmaal Muhammad, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Mid-Atlantic Area), Agency.
Jahmaal Muhammad v. United States Postal Service
01996888
May 3, 2001
.
Jahmaal Muhammad,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Mid-Atlantic Area),
Agency.
Appeal No. 01996888
Agency No. 1-D-273-0009-99
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. Complainant filed a formal complaint in which he
alleged discrimination on the bases of race (Black), religion (Muslim),
and reprisal (former EEO activity)<1> when on June 16, 1999, he was
being watched by two supervisors and two individuals from the Postal
Inspection Service (PIS).
For the following reasons, the Commission AFFIRMS the agency's final
decision dismissing complainant's complaint.
The complaint reveals that complainant, a custodian at the agency's Air
Mail Center in Greensboro, North Carolina, sought EEO counseling on June
17, 1999. Complainant filed a formal EEO complaint with the agency on
July 20, 1999, alleging that the agency had discriminated against him as
referenced above. The agency, in a final agency decision dated August
10, 1999, notified complainant that because he did not show that he was
an �aggrieved employee� his complaint was being dismissed for failure
to state a claim. It is from this decision that complainant appeals.
On appeal complainant makes no specific contentions in regard to the
agency's FAD. Complainant does state that �[i]mproper conduct in the
U.S.P.S. is out of control. Some one [sic] must be accountable.� The
agency requests that we affirm its FAD.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss an entire complaint that fails to state
a claim. An agency shall accept a complaint from any aggrieved employee
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. Dep't of the Air Force, EEOC Appeal No. 05931049 (April 22,
1994). To establish that he is an �aggrieved employee� and therefore
state a claim under the regulations, a complainant must allege that he
was injured in fact. A term, condition, or privilege of employment has
been held in Commission decisions to include, inter alia, promotion,
demotion, discipline, reasonable accommodation, appraisals, awards,
training, benefits, assignments, overtime, leave, tours of duty, etc.
Cobb v. Dep't of the Treasury, EEOC Appeal No. 05970077 (March 13, 1997).
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant
claims that on June 16, 1999, his supervisors, along with two postal
inspectors, engaged in unlawful discrimination based on race, religion,
and reprisal when they placed him under surveillance to see whether he
was discarding mail. Looking to the facts of the case before us, in
the light most favorable to complainant, we can only conclude that the
surveillance alone does not constitute an adverse employment action on the
part of the agency. Neither the supervisors, nor the postal inspectors
followed the surveillance of complainant with any disciplinary or other
action. Consequently, we find that complainant was not aggrieved since
a term, condition, or privilege of his employment was not affected by
the surveillance.
Based on the foregoing, we find that the agency properly dismissed
the complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 3, 2001
__________________
Date
1The record indicates that complainant participated in prior protected
activity, but it is unclear under which statute such activity occurred.