Louis Morelli, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 1, 1999
01985141 (E.E.O.C. Dec. 1, 1999)

01985141

12-01-1999

Louis Morelli, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Louis Morelli v. United States Postal Service

01985141

December 1, 1999

Louis Morelli, )

Complainant, )

)

v. ) Appeal No. 01985141

) Agency No. 4B018006898

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On June 16, 1998, complainant filed a timely appeal with this Commission

from a final agency decision (FAD), dated June 5, 1998, 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> The Commission accepts complainant's appeal in accordance

with EEOC Order No. 960, as amended.

In his complaint, complainant alleged that he was subjected to

discrimination on the bases of national origin (Italian) and in reprisal

for prior EEO activity when:

On March 26, 1998, the Officer-in-Charge (OIC) failed to notify

complainant of three calls concerning union business; and

On March 30, 1998, the OIC remarked to complainant "I'm getting sick

of you."

The agency dismissed claims 1 and 2 for failure to state a claim.

Specifically, the agency noted that complainant had not shown any

cognizable harm, within the meaning of 29 C.F.R. �1614.103(a), for

either claim 1 or 2. With regard to claim 1, the agency found that

the telephone calls at issue concerned complainant in his capacity as

a Union Official and not as an employee; therefore, a term, condition,

or privilege of his employment was not adversely affected.

On appeal, complainant argues that the EEO Counselor failed to include

all the issues in her report. Specifically, complainant contends that

he also raised the issue of a Letter of Warning (LOW), which had been

reduced to an official discussion.

In response, the agency reiterates that complainant's phone usage was

in the capacity of a union official and not as an employee. Also, the

agency maintains that complainant has yet to show how he was harmed

by OIC's alleged actions. Furthermore, the agency points out that

complainant chose not to pursue the identified LOW during counseling and

failed to raise this issue in his formal complaint. The agency submits

an affidavit by the EEO Counselor stating that complainant specifically

informed her that he was not pursuing the LOW as an issue because it

had been reduced to an official discussion, and he believed it was an

issue better pursued through the grievance/arbitration forum. Finally,

the agency proffers that all of complainant's claims, if proven true,

would not constitute a hostile work environment claim.

Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to 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;

�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 regard to claim 1, we find that complainant does state a claim.

Complainant alleged that the OIC failed to notify him of three calls

concerning union business. Clearly, notification of telephone calls could

be a condition or privilege of employment. Since complainant alleged

that this failure was due to his national origin and in reprisal for

his prior EEO activity, he has stated a claim within the purview of the

EEO regulations. The agency's apparent contention that complainant was

properly not notified of the subject three calls because they involved

union business, goes to the merits of the claim and is irrelevant to

the procedural issue of whether he has stated a justiciable claim under

Title VII. See Ferrazzoli v. USPS, EEOC Request No. 05910642 (August 15,

1991). Accordingly, the agency's dismissal of claim 1 is hereby REVERSED.

As to claim 2, complainant only alleged one isolated remark by the OIC.

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. U.S. Postal Service, EEOC Request No. 05960227

(June 10, 1996); Henry v. U.S. Postal Service, EEOC Request No. 05940695

(February 9, 1995). Therefore, complainant has not stated a claim and

the agency's dismissal of claim 2 is appropriate.

Finally, with regard to the issue of complainant's Letter Of Warning

raised on appeal, we find that the evidence of record indicates that

while complainant may have initially raised the claim with the EEO

Counselor, he failed to pursue the issue. Indeed, the agency presented

evidence to show that complainant never intended to pursue the LOW

as an issue in his EEO complaint. Consequently, we find that the LOW

was properly not included as an issue in the EEO Counselor's report or

addressed by the agency in its final decision.

CONCLUSION

For the reasons set forth above, the agency's dismissal of claim 2

is AFFIRMED. The dismissal of claim 1 is REVERSED. Claim 1 is hereby

REMANDED to the agency for further processing in accordance with the

Order below.

ORDER

The agency is ORDERED to process the remanded claims in accordance

with 64 Fed. Reg. 37,644, 37,656-57 (1999) (to be codified at 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 (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 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 64

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

to as 29 C.F.R. �1614.409).

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 at 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 (T0993)

This decision affirms the agency's final decision 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 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.

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. 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 (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:

December 1, 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:

________________________

Date Equal Employment Assistant

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.