0120120009
03-06-2012
Clarence H. Russell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Clarence H. Russell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120120009
Agency No. 4G350000811
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 22, 2011, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier at the Agency’s Post Office facility in Birmingham,
Alabama.
On July 12, 2011, Complainant filed a formal EEO complaint alleging
that the Agency subjected him to discrimination on the bases of race
(Caucasian), sex (male), and age (66) when: (1) on February 20, 2011,
he was not paid for overtime worked; and (2) in April 2011, he was told
by management on several occasions that he needed to retire.
The Agency dismissed the issue of overtime pay as moot, noting that
Complainant filed a grievance on the matter and he was paid for his
overtime. The Agency provided a statement documenting the overtime
paid pursuant to the grievance settlement. Further, the Agency asked
Complainant to provide evidence of compensatory damages and asserts
he failed to show that he was entitled to such. The Agency then found
that the isolated incidents of being told to retire, even if true, did
not state a claim as Complainant was not harmed. The instant appeal
followed without comment.
ANALYSIS AND FINDINGS
With respect to his claim concerning overtime pay, 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. Dep’t 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. In the instant case, the Commission
finds that the Agency has provided proof that, through the negotiated
grievance process, Complainant has been issued a check for the overtime
pay at issue. Moreover, Complainant failed to provide sufficient evidence
of entitlement for compensatory damages.
With respect to being told the retire, under the regulations set forth
at 29 C.F.R. Part 1614, an agency shall accept a complaint from an
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. Dep’t of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot
establish that s/he is aggrieved, the agency shall dismiss a complaint
for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not
challenge an agency action or inaction regarding a specific term,
condition, or privilege of employment, the claim of harassment may
survive if it alleges conduct that is sufficiently severe or pervasive
to alter the conditions of the complainant’s employment. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The Commission finds
that Complainant’s allegations are insufficient to state a claim of
a hostile work environment.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
March 6, 2012
__________________
Date
2
0120120009
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120009