01995711
08-30-2000
Rudolph White, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rudolph White, Jr. v. USPS
01995711, 01995826, 01995916
August 30, 2000
.
Rudolph White, Jr.,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995711
01995826
01995916
Agency No. 1-G-708-0026-99
1-G-708-0029-98
1-G-708-0033-99
DECISION
APPEAL NO. 01995711
Complainant filed a timely appeal with this Commission from a final
agency decision dated July 1, 1999, dismissing his complaint for failing
to state a claim. Complainant alleged discrimination on the bases of
race (black), sex (male), physical disability (bilateral carpal tunnel
syndrome), mental disability (adjustment disorder), and reprisal (prior
EEO activity) when on October 6, 1998, his supervisor required him to
sign a PS Form 3971 concerning a suspension. The agency found that
complainant's signing of the PS Form 3971 documenting his suspension
did not in and of itself render complainant aggrieved.
APPEAL NO. 01995826
Complainant filed a timely appeal with this Commission from a final agency
decision dated June 2, 1999, dismissing his complaint for failing to state
a claim. Complainant alleged discrimination on the bases of physical
disability (bilateral carpal tunnel syndrome) and reprisal (prior EEO
activity) when on January 8, 1998, he became aware that the sick leave
he had requested for January 15, 1998 through February 12, 1998, had not
been submitted. The agency noted that complainant ultimately reported
to work on the days for which he had requested leave and, therefore,
found that he was not aggrieved by the �non-submission� of the subject
leave request.
APPEAL NO. 01995916
Complainant filed a timely appeal with this Commission from a final
agency decision dated July 16, 1999, dismissing his complaint for
failing to state a claim. Complainant alleged discrimination on the
bases of race (black), sex (male), physical disability (bilateral carpal
tunnel syndrome), mental disability (adjustment disorder), and reprisal
(prior EEO activity) when on October 9, 1998, complainant became aware
that management had informed other employees that complainant had been
suspended for disciplinary problems rather than for non-submission of
medical information, which has caused complainant to be harassed and
ridiculed by other employees. The agency found that complainant failed
to show that he was injured by any action of management with regard to
the alleged remark.
The Commission's revised regulations now require that two or more
complaints filed by the same complainant shall be consolidated by the
agency for joint processing. 64 Fed. Reg. 37,644, 37,661 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. �1614.606).<1> On
appeal, though not mandatory, the Commission will consider consolidation
to better utilize both agency and Commission resources, as well as avoid
fragmentation of complaints. Accordingly, the above three complaints
are consolidated on appeal.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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 or
disabling condition. 29 C.F.R. �� 1614.103, .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 22,
1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
In the present case, it appears that complainant is alleging that he
was subjected to harassment by management when he had to sign the PS
Form 3971, his leave request was not submitted, and other employees were
purportedly informed of the wrong reason for complainant's suspension. We
find, however, that even viewing these incidents together and in the
light most favorable to complainant, we find that complainant has not
stated a cognizable claim under the EEOC Regulations. See Cervantes
v. United States Postal Service, EEOC Request No. 05930303 (November
12, 1993). Complainant failed to show how he was aggrieved by the
incidents in question. Accordingly, the agency's decisions to dismiss
the complaints for failure to state a claim were proper.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
August 30, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulation governing 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.