01991088
11-19-1999
Ira Malmed, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ira Malmed v. United States Postal Service
01991088
November 19, 1999
Ira Malmed, )
Complainant, )
)
v. ) Appeal No. 01991088
) Agency No. 1-G-771-0123-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
On November 18, 1998, complainant filed a timely appeal with this
Commission from a final agency action 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> In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (white) and religion (Jewish) when he reported an
incident in which a coworker allegedly assaulted him to his supervisor
and the supervisor found complainant partially responsible for the
altercation. In addition, complainant's supervisor failed to take action
against the coworker.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
Complainant initiated EEO counseling on August 7, 1998, and thereafter
filed a formal complaint on September 8, 1998. In his complaint,
complainant alleged discrimination based on race (white) and religion
(Jewish) when, on August 6, 1998, complainant's supervisor found him
partially responsible for an incident he reported in which a coworker
allegedly assaulted him.<2> Further, the supervisor failed to take
action against complainant's coworker.
On November 6, 1998, the agency issued an action dismissing complainant's
complaint for failure to state a claim. This appeal followed.
ANALYSIS AND FINDINGS
Failure to State A Claim
EEOC Regulation 64 Fed. Reg. 37,644, 37, 656 (1999) (to be codified
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(a), .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).
Where a complainant does not suffer a present harm or loss regarding
a term, condition, or privilege of employment, he or she may still be
aggrieved where the complaint claims, taken together and treated as
true, are sufficient to state a hostile or abusive environment claim.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). A hostile or abusive work environment claim requires that
a complainant claim facts which, if proven true, may indicate that the
complainant was subjected to harassment that was severe or pervasive
enough to alter the conditions of his or her employment. Id. at 3.
In making such a determination, the Commission has considered "whether
a reasonable person in the complainant's circumstances would have found
the claimed behavior to be hostile or abusive." Id.
Complainant stated that he informed his supervisor of an incident in which
a coworker assaulted him. According to the record, on August 6, 1998, the
supervisor held a meeting with complainant, complainant's coworker, and a
union representative to address the encounter. At the conclusion of the
meeting, the supervisor found both complainant and his coworker at fault
for the incident. The supervisor did not take corrective action against
either employee because he felt he did not have sufficient information
to do so.<3> Accordingly, the agency's dismissal is affirmed.
CONCLUSION
It is the decision of the Commission to AFFIRM the agency's dismissal
of complainant's complaint for failure to state a claim.
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 and hereinafter
referred to as 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 (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:
Nov. 19, 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:
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.
2According to a signed statement by the supervisor, complainant alleged
a previous incident with the same coworker six months earlier. In the
previous incident, the coworker allegedly asked complainant for twenty
dollars in exchange for his silence regarding complainant getting on the
clock five minutes early. When complainant did not have the money, the
coworker allegedly made an offensive remark and then reported complainant
to management for getting on the clock early.
3In the supervisor's signed statement, he indicated that he requested
the names of persons who witnessed the altercation from complainant.
He intended to use the names to complete an investigation of the claimd
incident. However, he never received any names. The supervisor found
an employee who overheard the incident and provided a written statement.
He also found two other employees who witnessed the incident and gave
oral statements, however, they failed to provide written statements.
According to the supervisor, the statements of all three witnesses
supported the coworker's written statement of what occurred.