01994155_01A12732
06-26-2001
Jody K. George, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jody K. George v. United States Postal Service
01994155, 01A12732
06-26-01
.
Jody K. George,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01994155, 01A12732
Agency Nos. 4F-956-0164-97, 4F-956-0022-01
DECISION
INTRODUCTION
Jody K. George (complainant) timely initiated appeals with the Equal
Employment Opportunity Commission (EEOC or Commission) from two separate
final agency decisions (FAD) of the United States Postal Service (agency),
concerning his complaints 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, and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
We consolidate the appeals pursuant to 29 C.F.R. � 1614.606.
ISSUES PRESENTED
Complaint No. 1 (Agency Case No. 4F-956-0164-97) (Appeal No. 01994155)
Whether the agency properly dismissed complainant's complaint as moot
when a May 30, 1997 Letter of Warning (LOW) was reduced to a discussion
through a grievance settlement.
Complaint No. 2 (Agency Case No. 4F-956-0022-01) (Appeal No. 01A12732)
Whether the agency properly dismissed complainant's complaint for failure
to state a claim when, on July 28, 2000, complainant was harassed by
his supervisor when she made the invidious commentary that complainant
should know just how long it should take to complete the City-21 route,
she wanted all of the mail delivered, and any time over what she allowed
for delivery would be unauthorized and dealt with later.
BACKGROUND
Complaint 1
During the relevant time, complainant was employed as a Letter Carrier,
T-6 string, at a Post Office in Merced, California. Complainant
had worked with the agency since November 30, 1979. On April 30,
1997, complainant requested one hour and fifteen minutes overtime.
The supervisor of Customer Services (Supervisor I) approved one hour of
overtime for that date. The record reveals that complainant used one
hour and fifty-one minutes of overtime. On May 30, 1997, Supervisor I
issued a LOW dated May 9, 1997 to complainant, charging him with Failure
to Follow Instructions/Unauthorized Use of Overtime. Complainant sought
EEO counseling, and on October 17, 1997, filed a formal complaint alleging
discrimination on the bases of race (Caucasian), color (white), religion
(Christian), sex (male), national origin (Polish), age (D.O.B. 9/23/55)
and retaliation (prior EEO activity).
On November 17, 1997, the agency dismissed complainant's complaint,
finding that the complaint was moot because a grievance settlement
had reduced the LOW to a discussion. The agency reasoned that there
was no reasonable expectation that the alleged violation would recur
and that interim relief had completely and irrevocably eradicated the
effects of the alleged violation. By decision dated March 4, 1999,
the Commission vacated the agency's FAD and remanded the matter for
further processing. See Jody K. George v. United States Postal Service,
EEOC Appeal No. 01981938 (March 8, 1999). The Commission found that
a LOW issued to complainant on October 27, 1997 had to be examined to
determine whether the new discipline was sufficiently similar to the
previous decision, and whether there was no reasonable expectation that
the alleged violation would recur.
In a FAD dated March 24, 1999, the agency again dismissed complainant's
complaint for mootness because the May 30, 1997 LOW was reduced to an
official discussion through a grievance settlement, rendering complainant
no longer aggrieved. The agency further noted that the October 28,
1997 LOW was reduced to documented instructions through a grievance
settlement, as well.
Complaint 2
On July 28, 2000, a supervisor (Supervisor II) told complainant
her expectations concerning time with respect to the City-21 route.
Complainant asked Supervisor II what she wanted him to do if he could not
finish delivering all the mail in the time she had allowed. She would
not respond specifically, but instead made �invidious commentary� about
how long it should take to do the City-21 route. Supervisor II stated
that she wanted complainant to deliver all the mail, but any time over
what she allowed would be unauthorized and dealt with later.
In a FAD dated January 22, 2001, the agency dismissed complainant's
complaint for failure to state a claim, finding that complainant had
failed to show that he was an aggrieved employee.
Complainant's Contentions on Appeal
Complainant contends, among other things, that: 1) the agency continues to
harass and badger him; 2) he was treated differently than his co-workers
with respect to Complaint 2; and 3) he had engaged in protected activity
against the agency during the proximate time of these incidents.
ANALYSIS AND FINDINGS
Complaint 1
EEOC Regulation 29 C.F.R. � 1614.107(a) (5) provides that the agency
shall dismiss a complaint that is moot. To determine whether the issue
raised in the instant complaint is moot, it must be ascertained (1) if it
can be said with assurance that there is no reasonable expectation that
the alleged violation will recur, and (2) if interim relief or events
have completely and irrevocably eradicated the effects of the alleged
violation. See County of Los Angeles v. Davis, 440 U.S. 625(1979).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
The record reveals that as a result of a July 15, 1997 grievance
settlement, the May 30, 1997 LOW was reduced to an official discussion.
In addition, the October 28, 1997 LOW was reduced to a documented
instruction in a March 3, 1998 grievance settlement. However, we note
that complainant's complaint states that he wishes �to be made whole�
and that �fair remuneration be made for [his] efforts to resolve this
complaint.� After reviewing complainant's statements, we interpret
his comments to be a request for compensatory damages. The Commission
has held that a complainant need not use legal terms of art such as
�compensatory damages,� but may merely use words or phrases to put the
agency on notice that a relevant pecuniary or non-pecuniary loss has
been incurred. See Haynes v. United States Postal Service, EEOC Request
No. 05920891 (December 14, 1993); Park v. United States Postal Service,
EEOC Appeal No. 01931280 (December 7, 1993); Banks v. Department of the
Interior, EEOC Request No. 05920680 (March 4, 1994). Assuming arguendo
that complainant were to prevail in this matter, he might be entitled
to compensatory relief. The Commission has long held that the potential
for compensatory damages means that an allegation cannot be dismissed as
being moot without a determination being made as to whether complainant
is entitled to compensatory damages. See, e.g., Watson v. Department of
the Navy, EEOC Request No. 05970452 (January 8, 1999);Huhn v. Department
of the Treasury, EEOC Request No. 05940630 (February 16, 1995); Ellicker
v. Department of Agriculture, EEOC Request No. 05931079 (September 22,
1994); and Salazar v. Department of Justice, EEOC Request No. 05930316
(February 9, 1994). Consequently, Complaint 1 was improperly dismissed
by the agency for being moot.
Complaint 2
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) requires an agency to 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).
With respect to Complaint 2, we find that complainant has failed to show
that he was aggrieved with respect to a term, condition, or privilege of
employment for which there is a remedy. Supervisor II told complainant
that he should know just how long it should take to complete the City-21
route, she wanted all of the mail delivered, and any time over what she
allowed for delivery would be unauthorized and dealt with later. However,
the record does not establish that these incidents were followed by any
concrete agency action against complainant. 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).
Furthermore, we do not find that the alleged events are sufficiently
severe or pervasive to state a claim of discriminatory harassment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). Consequently, Complaint 2 was properly dismissed pursuant
to 29 C.F.R. �1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, the Commission holds that the agency's decision to dismiss
Complaint 1 for mootness was improper, and is therefore, REVERSED and
REMANDED for further processing consistent with this decision and the
order below. With respect to Complaint 2, the Commission holds that the
agency's decision to dismiss Complaint 2 for failure to state a claim
was proper, and is therefore, AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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 (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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 (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 (Q0900)
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 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 (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
____06-26-01______________
Date