01981175
11-19-1998
Germany Fomby Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Germany Fomby Jr. v. United States Postal Service
01981175
November 19, 1998
Germany Fomby Jr., )
Appellant, )
)
v. ) Appeal No. 01981175
) Agency No. 4F-940-0111-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On November 22, 1997, appellant filed a timely appeal with this Commission
from a final agency decision ("FAD") received by him on October 31,
1997, 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. In his complaint, appellant alleged that he
was subjected to discrimination on the basis of race (Black) when:
On March 3, 1997, appellant was issued a 14-day suspension for
Unsatisfactory Performance/Failure to Obey Instructions for allegedly
failing to report an accident immediately; and
On an unspecified date, appellant was subjected to rude conduct by
his supervisor.
On October 29, 1997, the agency issued a final decision dismissing
allegation (1) pursuant to 29 C.F.R. �1614.107(e), on the grounds that it
was rendered moot by a grievance settlement in which the suspension was
reduced to an official discussion. The FAD did not address allegation
(2).
On appeal, appellant contends that his complaint is not moot because he
received no apology from the individuals responsible for the personnel
actions identified in his complaint.
EEOC Regulation 29 C.F.R. �1614.107(e) provides for the dismissal of a
complaint, or portions thereof, when the issues raised therein are moot.
To determine whether the issues raised in appellant'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). When such circumstances
exist, no relief is available and no need for a determination of the
rights of the parties is presented.
The record reveals that the 14-day suspension appellant received was
reduced to an official discussion and that it could not be used in future
cases unless agreed to by both parties. This Commission has consistently
held that official discussions alone do not render an employee aggrieved.
See Miranda v. U.S. Postal Service, EEOC Request No. 05920308 (June 11,
1992); Devine v. U.S. Postal Service, EEOC Request Nos. 05910268, 05910269
and 05910270 (April 4, 1991). We find, therefore, that the grievance
settlement completely and irrevocably eradicated the effects of the
alleged discrimination identified in allegation (1), and, accordingly,
it was properly dismissed as moot.<1>
The Commission notes that the agency failed to address allegation (2),
and the Commission deems the agency's action to be tantamount to a
dismissal of that matter. Appellant's submissions on appeal reveal
that the EEO Office was notified of the issue in his pre-complaint
form, the EEO Counselor identified the issue in the Counselor's Report,
and appellant referenced the matter in his formal complaint. We find,
however, that dismissal was proper pursuant to 29 C.F.R. �1614.107(a),
for failure to state a claim.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which 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).
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). In the instant case, the record discloses that no
concrete agency action accompanied the supervisor's alleged rude behavior.
Consequently, allegation (2) was properly dismissed pursuant to 29
C.F.R. �1614.107(a).
Accordingly, the agency's decision to dismiss both allegations in
appellant's complaint was proper and is AFFIRMED for the reasons set
forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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 (S0993)
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. 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:
November 19, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1While we note that appellant requested an apology from management as part
of his remedial relief, apologies are not included in the remedial relief
available under 29 C.F.R. �1614 and, therefore, are not required to render
a complaint moot.