Clyde R. Graves, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 5, 2007
0120070870 (E.E.O.C. Apr. 5, 2007)

0120070870

04-05-2007

Clyde R. Graves, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Clyde R. Graves,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070870

Agency No. 4H-350-0145-06

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated October 30, 2006, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,

complainant alleged that he was subjected to discrimination on the bases

of race (White), sex (male), disability, and age (D.O.B. 06/17/45) when:

1. He was subjected to harassment; and

2. On August 23, 2006, he was informed that his sick leave could not be

extended.

In support of his claim of harassment, complainant indicated that the

following events occurred:

a. On July 26, 2006, he received a letter directing him to report for an

"investigative interview" with a management official;

b. On July 28, 2006, during the "investigative interview," a management

official asked complainant when he was going to retire. The management

official then stated that complainant, who was on an extended sick leave,

did not really have health issues and that the management official needed

complainant's retirement by September 2006. The management official

said that he would start procedures to terminate complainant, noting

that money was not an issue with complainant as he had plenty of it;

c. Complainant was directed to submit to weekly investigative interviews.

During one on August 4, 2006, the same management official devoted the

entire interview to his retirement. The management allegedly stated

that personnel had not received anything on complainant's retirement.

d. By letter dated August 8, 2006, complainant was issued a letter

of warning. It was subsequently rescinded on September 8, 2006.

e. The next weekly interviews occurred on August 11 and 18, 2006.

f. On August 23, 2006, complainant received notice that his sick leave

could not be extended.

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim. As to claim (2), the agency noted that

complainant's sick leave was later extended. Therefore, it did not

state a claim. As to complainant's claim of harassment, the agency

solely looked at complainant's assertion that he was subjected to weekly

investigative interviews. The agency noted that these interviews were

solely voluntary and that there was not harm asserted. In addition,

the agency found that the investigative interviews were a few isolated

incidents that were not sufficient to state a claim of harassment.

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. 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). Upon review, we find that the agency did not take into

consideration all of the events provided by complainant in support of

his claim of harassment. Based on the totality of the circumstances,

we find that complainant has stated a claim of harassment. Therefore,

we find the dismissal of claim (1) was inappropriate.

As to claim (2), we find that the agency, in dismissing the claim,

erroneously stated it did not state a claim. The argument raised by the

agency was that, due to the reconsideration of the matter, the extension

of sick leave was granted. Therefore, the denial of the extension was

moot. 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. Department 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.

The Commission has held that an agency must address the issue of

compensatory damages when a complainant shows objective evidence

that she has incurred compensatory damages, and that the damages

are related to the alleged discrimination. Jackson v. United States

Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), request

for reconsideration denied, EEOC Request No. 05930306 (February 1,

1993). Should complainant prevail on this complaint, the possibility

of an award of compensatory damages exists. See Glover v. United

States Postal Service, EEOC Appeal No. 01930696 (December 9, 1993).

Because complainant requested compensatory damages, the agency should

have requested that complainant provide some objective proof of the

alleged damages incurred, as well as objective evidence linking those

damages to the adverse actions at issue. See Allen v. United States

Postal Service, EEOC Request No. 05970672 (June 12, 1998); Benton

v. Department of Defense, EEOC Appeal No. 01932422 (December 3, 1993).

As the agency failed to address the issue of compensatory damages, we find

that dismissal on the grounds that it was rendered moot was improper.

See Rouston v. National Aeronautics and Space Administration, EEOC

Request No. 05970388 (March 18, 1999).

CONCLUSION

Accordingly, we REVERSE the agency's final decision dismissing the

complaint and REMAND the complaint for further processing as ordered

below.

ORDER (E0900)

The agency is ordered to process the remanded complaint 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 (K0501)

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)

(1994 & Supp. IV 1999). 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 (M0701)

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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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

April 5, 2007

__________________

Date

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0120070870

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070870