01985141_r
12-01-1999
Louis Morelli, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Louis Morelli, )
Complainant, )
)
v. ) Appeal No. 01985141
) Agency No. 4B018006898
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On June 16, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD), dated June 5, 1998, 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.<1> The Commission accepts complainant's appeal in accordance
with EEOC Order No. 960, as amended.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of national origin (Italian) and in reprisal
for prior EEO activity when:
On March 26, 1998, the Officer-in-Charge (OIC) failed to notify
complainant of three calls concerning union business; and
On March 30, 1998, the OIC remarked to complainant "I'm getting sick
of you."
The agency dismissed claims 1 and 2 for failure to state a claim.
Specifically, the agency noted that complainant had not shown any
cognizable harm, within the meaning of 29 C.F.R. �1614.103(a), for
either claim 1 or 2. With regard to claim 1, the agency found that
the telephone calls at issue concerned complainant in his capacity as
a Union Official and not as an employee; therefore, a term, condition,
or privilege of his employment was not adversely affected.
On appeal, complainant argues that the EEO Counselor failed to include
all the issues in her report. Specifically, complainant contends that
he also raised the issue of a Letter of Warning (LOW), which had been
reduced to an official discussion.
In response, the agency reiterates that complainant's phone usage was
in the capacity of a union official and not as an employee. Also, the
agency maintains that complainant has yet to show how he was harmed
by OIC's alleged actions. Furthermore, the agency points out that
complainant chose not to pursue the identified LOW during counseling and
failed to raise this issue in his formal complaint. The agency submits
an affidavit by the EEO Counselor stating that complainant specifically
informed her that he was not pursuing the LOW as an issue because it
had been reduced to an official discussion, and he believed it was an
issue better pursued through the grievance/arbitration forum. Finally,
the agency proffers that all of complainant's claims, if proven true,
would not constitute a hostile work environment claim.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.107(a)(1)) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, that 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).
With regard to claim 1, we find that complainant does state a claim.
Complainant alleged that the OIC failed to notify him of three calls
concerning union business. Clearly, notification of telephone calls could
be a condition or privilege of employment. Since complainant alleged
that this failure was due to his national origin and in reprisal for
his prior EEO activity, he has stated a claim within the purview of the
EEO regulations. The agency's apparent contention that complainant was
properly not notified of the subject three calls because they involved
union business, goes to the merits of the claim and is irrelevant to
the procedural issue of whether he has stated a justiciable claim under
Title VII. See Ferrazzoli v. USPS, EEOC Request No. 05910642 (August 15,
1991). Accordingly, the agency's dismissal of claim 1 is hereby REVERSED.
As to claim 2, complainant only alleged one isolated remark by the OIC.
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). Therefore, complainant has not stated a claim and
the agency's dismissal of claim 2 is appropriate.
Finally, with regard to the issue of complainant's Letter Of Warning
raised on appeal, we find that the evidence of record indicates that
while complainant may have initially raised the claim with the EEO
Counselor, he failed to pursue the issue. Indeed, the agency presented
evidence to show that complainant never intended to pursue the LOW
as an issue in his EEO complaint. Consequently, we find that the LOW
was properly not included as an issue in the EEO Counselor's report or
addressed by the agency in its final decision.
CONCLUSION
For the reasons set forth above, the agency's dismissal of claim 2
is AFFIRMED. The dismissal of claim 1 is REVERSED. Claim 1 is hereby
REMANDED to the agency for further processing in accordance with the
Order below.
ORDER
The agency is ORDERED to process the remanded claims in accordance
with 64 Fed. Reg. 37,644, 37,656-57 (1999) (to be codified at 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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �1614.405).
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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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 (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:
December 1, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.