01994926
10-15-1999
Ira Malmed, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W.), Agency.
Ira Malmed v. United States Postal Service
01994926
Ira Malmed, )
Appellant, )
)
v. ) Appeal No. 01994926
) Agency No. 1-G-771-0026-99
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W.), Agency. )
______________________________)
DECISION
On June 1, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received on March 16, 1999, pertaining
to a complaint of unlawful employment discrimination pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et
seq. The Commission accepts appellant's appeal in accordance with EEOC
No. 960.001.
The record reflects that on December 14, 1998, appellant initiated
contact with an EEO Counselor. Subsequently the counseling failed,
and on or about January 12, 1999, appellant filed a formal complaint
alleging the following issues, (1) that a co-worker was promoted to
acting supervisor, (2) that the plant manager refused to speak with him
and (3) that appellant's transfer request was denied.
The agency issued a final decision on March 12, 1999 dismissing
allegations one and two of appellant's complaint for failure to state
a claim. The agency found that appellant is not an "aggrieved employee"
because the above actions have not caused appellant to suffer a harm
or loss to a term, condition or privilege of his employment for which
there is a remedy. It is from this decision that appellant appeals.
On appeal, appellant admits that the impetus behind allegation one was
his disapproval of his co-worker being promoted. I quote, "The first
complaint I filed on [the supervisor] and asked for[my co-worker]to be
removed from supervisor, I made the request because I was very upset".
And allegation two was alleged because appellant wanted the plant manager
to meet with him. Again I quote, " I only filed a complaint on [the plant
manager] to get him to meet and talk with me but I was not successful".
The agency dismissed allegations one and two of appellant's complaint
because he failed to state a claim. EEOC Regulation 29 C.F.R. �1614.107(a)
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).
In the present case, it is clear that appellant is not an "aggrieved
employee" under Diaz supra.. As per allegation one, appellant has failed
to demonstrate how a co-worker's promotion has caused him to suffer
a present loss or harm with respect to a term, condition or privilege
of his employment. In fact, appellant offers that he only filed the
allegation because he was upset. As per allegation two, appellant also
fails to demonstrate how the plant manager's alleged refusal to meet with
him caused him to suffer a present loss or harm to a term, condition or
privilege of his employment. Here, appellant offers that he only filed
the allegation against the plant manager with the expectation that he
would now meet with him. For these reasons, it is undisputably clear,
that appellant has not suffered a loss or harm with respect to a term,
condition or privilege of his employment for which there is a remedy,
thus, making him an "aggrieved employee". It is apparent that
allegations one and two are the product of appellant's dissatisfaction
with managements decision making and an attempt to influence the plant
manager to meet with him. Accordingly, the agency's decision to dismiss
allegations one and two above for failure to state a claim was proper
and is AFFIRMED.
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:
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
FOR OFO INTERNAL CIRCULATION ONLY
FOR PROCEDURAL CASES
TO: CARLTON M. HADDEN, ACTING DIRECTOR
OFFICE OF FEDERAL OPERATIONS
APPEAL NUMBER: 01994926
AGENCY NUMBER: 1-G-771-0026-99
(APPROVED) (DATE)
REQUEST NUMBER:
HEARING NUMBER:
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY): Ralph A. Suris
October 15, 1999
(SUPERVISOR: Marjorie Borders
(DIVISION DIRECTOR):
1.) (APPELLANT(S) Ira Malmed
2.) (AGENCY) USPS
3.) (DECISION) AFFIRMED
4.) (STATUTE(S) Title VII
5.) (BASIS(ES) OR
6.) (ISSUE(S) A4 & O1
7.) (TYPIST/DATE/DISK) RS1/ October 15, 1999
SPELL CHECK: YES
(PLEASE CHECK ALL APPLICABLE CODES)
PROCEDURAL CODES
LETTER CLOSURE CODES
X 3K - PROCEDURAL DECISION
? 3N - APPEAL DENIED/DISMISSED
? 3P - ADVERSE INFERENCE RAISED
X 4H - OFO AFFIRMED FAD
? 3M - OFO REVERSED AND REMANDED
? 4J - OFO MODIFIED FAD
? 4Q - COMPLIANCE REQUIRED
? 3B - FAD RESCINDED
? 3C - DUPLICATE DOCKET NUMBER
? 3D - WITHDRAWAL
? 3E - COMPLAINT SETTLED
? 3G - OTHER LETTER CLOSURE
[REVISED AS OF 4/21/98]