0120091423
06-19-2009
James M. Mayo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James M. Mayo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091423
Agency No. 4J600000709
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision, dated December 29, 2008, 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. For the
following reasons we AFFIRM the agency decision in part and REVERSE and
REMAND in part.
In his complaint, complainant alleged that he was subjected to
discrimination in reprisal for prior protected EEO activity under Title
VII when:
1. On October 24, 2008, his former supervisor, the Postmaster, charged
him with 32 hours of Absence without Official Leave (AWOL).
2. On October 29, 2008, the Postmaster sent him an e-mail threatening
to continue deleting his automated time punches.
3. On November 5, 2008, the Postmaster stated on his end of the year
evaluation that she had interviewed him on the phone, when she had not.
In its December 29, 2008 final decision, the agency dismissed the
complaint in its entirety for failure to state a claim upon which relief
can be granted. 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, disability, or retaliation.
29 C.F.R. � 1614.103. 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).
Regarding the first claim, the record indicates that complainant was
not initially paid for the hours for which he was charged AWOL. The
charge of AWOL resulted in a harm or loss with respect to complainant's
employment. Complainant's first allegation successfully states a claim.
Complainant's first claim is also not moot. The regulation set forth
at 29 C.F.R. �1614.107(a)(5) provides for the dismissal of a complaint
when the issues raised therein are moot. To determine whether the issues
raised in complainant's complaint are moot, the factfinder must ascertain
whether (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 discrimination. See County of Los Angeles v. Davis, 440 U.S. 625,
631 (1979); Kuo v. Department of the Navy, EEOC Request No. 05970343
(July 10, 1998). When such circumstances exist, no relief is available and
no need for a determination of the rights of the parties is presented.
The record shows that interim relief or events have not completely
and irrevocably eradicated the effects of the alleged discrimination.
Although the record indicates that complainant has received back pay for
the days he was erroneously charged AWOL, complainant states that the
loss of pay and subsequent waiting period before he was paid caused him
anxiety and depression. Complainant can receive compensatory damages
for his proven suffering if he prevailed on the merits.1
Complainant's second claim does not allege actual harm, and was properly
dismissed by the agency for failure to state a claim. The Commission has
repeatedly found that remarks or comments unaccompanied by a concrete
agency action are not a direct and personal deprivation sufficient
to render an individual aggrieved for the purposes of Title VII.
See Backo v. United States Postal Service, EEOC Request No. 05960227
(June 10, 1996); Henry v. United States Postal Service, EEOC Request
No. 05940695 (February 9, 1995). To the extent that complainant is
alleging that the remarks constituted harassment, the Commission notes
that unless the conduct is severe, a single incident or group of isolated
incidents will not be regarded as a claim of discriminatory harassment.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Complainant's third claim also fails to allege actual harm, and was
also properly dismissed. The record reveals that complainant does
not challenge the evaluation itself as being negative, but rather
challenges the fact that he was denied personal input in the evaluation.
The record reflects that on November 5, 2008, complainant's own comments
were included in the evaluation.
We therefore AFFIRM the agency's dismissal of claims 2 and 3, and REVERSE
the dismissal of claim 1. Claim 1 is hereby REMANDED to the agency for
further processing.
ORDER (E0408)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. �1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 19, 2009
__________________
Date
1 Complainant's prior EEO complaint alleged discrimination based on his
race (Caucasian).
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0120091423
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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