01997066
02-28-2002
Stephen A. Taube, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Stephen A. Taube v. United States Postal Service (Western Area)
01997066
February 28, 2002
.
Stephen A. Taube,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01997066
Agency No. 4-E-980-0029-99
DECISION
On or around June 10, 1999, Stephen A. Taube (�complainant�) filed a
formal complaint of employment discrimination against his employer,
the United States Postal Service (�the agency�). In this complaint,
complainant contended that the agency had discriminated against him on
the bases of his national origin (German American), race (White), and
gender (male), when agency management officials (1) subjected him to an
investigatory interview concerning an extended break he purportedly had
taken; (2) displaced him from his assigned bid (by �moving him around
like a[n] unassigned regular�); and (3) held him to a minute-by-minute
time schedule. Complainant was thus alleging that the agency had violated
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. (�Title VII�).
However, on August 11, 1999, the agency issued a final decision (�FAD-1�)
dismissing Issue #1 (above) for untimely EEO counselor contact (since
complainant allegedly had sought EEO counseling for this matter one
day after the applicable 45-day deadline had passed), and for failure
to state a cognizable claim (because complainant had not shown that
merely being questioned about a break rendered him a sufficiently
�aggrieved employee�). The agency accepted Issue #2 and Issue #3
(above) for investigation. Complainant nonetheless filed a timely notice
challenging this FAD-1. On September 17, 1999, we � the United States
Equal Employment Opportunity Commission (�EEOC� or �the Commission�)
acknowledged receipt of this notice and docketed it as this appeal.
While this appeal was pending before EEOC, the agency issued a second
final agency decision (�FAD-2�). This FAD-2, released on April 21, 2000,
attempted to �rescind and supercede� FAD-1. It reaffirmed the agency's
decision to reject Issue #1 for failure to state a claim (though it
revoked the agency's earlier conclusion that Issue #1 should be dismissed
for untimely EEO counselor contact<1>). FAD-2 also dismissed Issue #2
and Issue #3 for complainant's failure to cooperate in the investigation
of, and to properly prosecute, these claims. Complainant did not appeal
this revised FAD-2.
Because complainant chose not to file a timely appeal of the agency's
dismissal of Issue #2 and Issue #3, the only question before us is whether
the agency's dismissal of Issue #1 was proper.<2> The agency argued
(in both FAD-1 and FAD-2) that complainant had not stated a claim with
respect to Issue #1. It asserted that complainant was merely questioned
about an extended (and potentially prohibited) break he had taken, and
that this investigatory interview did not cause complainant to �suffer
any measurable personal harm as a result of the incident.� First Final
Agency Decision (Aug 11, 1999), at 3. Indeed, the agency notes, after the
investigatory interview, �no discipline was issued, there was no monetary
loss, and there were no changes in the complainant's hours, wages,
and/or other terms and conditions of employment.� Id. Accordingly, the
agency concluded, the incident had not rendered complainant an �aggrieved
employee� with standing to file a claim of employment discrimination.
We agree. 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 �aggrieved 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 disability. See 29
C.F.R. �� 1614.103, 1614.106(a); cf. Marsh v. Department of Interior,
EEOC Appeal No. 01A20127 (Jan. 29, 2002) (holding that �[t]he only
proper questions in determining whether a claim is within the purview
of the EEO process are (1) whether the complainant is an aggrieved
employee and (2) whether she has alleged employment discrimination
covered by the EEO statutes�). However, this 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. See, e.g., Contreras
v. Department of Transportation, EEOC Appeal No. 01A04342 (Feb. 11, 2002)
(citing Diaz v. Department of the Air Force, EEOC Request No. 05931049
(Apr. 21, 1994)). Moreover, we have ruled that remarks or comments,
unaccompanied by any concrete agency action, are usually not a direct
and personal deprivation sufficient to render an individual aggrieved
for purposes of stating a valid employment discrimination claim. See,
e.g., Nelson v. Department of Defense (Defense Contract Audit Agency),
EEOC Appeal No. 01A13907 (Sept. 25, 2001).
Here, as the agency points out, complainant has not shown how merely
being questioned about a break he took caused him any present harm or
loss with respect to a term, condition, or privilege of employment,
or resulted in any concrete agency action. Therefore, we find that
complainant was not �aggrieved� for these purposes, and that the agency
did not err when it dismissed this portion of his complaint for a failure
to state a colorable claim of employment discrimination. Accordingly,
this part of FAD-1 is hereby affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if 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 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; see also EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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)
Complainant has the right to file a civil action in an appropriate United
States District Court within ninety (90) calendar days from the date that
complainant receives this decision. If complainant files a civil action,
complainant 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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility or
department in which complainant works. If complainant files a request
to reconsider and also files a civil action, filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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.; and 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 complainant's 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 entitled
�Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 28, 2002
__________________
Date
1Between the issuance of FAD-1 and FAD-2,
the agency discovered that it had erroneously calculated the time between
the investigatory interview at issue and the date on which complainant
sought EEO counseling over this incident. In FAD-2, the agency admitted
that complainant had in fact sought EEO counseling within 45 days of
the date of the relevant investigatory interview.
2Under the current version of the applicable regulations, complainants are
not allowed to appeal partial dismissals of complaints. See 29 C.F.R. �
1614.107(b). However, this prohibition against appeals of partial
dismissals became effective on November 9, 1999. See 64 Fed. Reg. 37643,
37644, 37656 (Jul. 12, 1999). Complainant had filed his appeal of FAD-1
(the agency's partial dismissal of his complaint) before this ban went
into effect. Hence, we will not apply this preclusive rule to the appeal
complainant filed with us pre-November 9, 1999.