Germany Fomby Jr., Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 19, 1998
01981175_r (E.E.O.C. Nov. 19, 1998)

01981175_r

11-19-1998

Germany Fomby Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


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.