Jody K. George, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 26, 2001
01994155_01A12732 (E.E.O.C. Jun. 26, 2001)

01994155_01A12732

06-26-2001

Jody K. George, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Jody K. George v. United States Postal Service

01994155, 01A12732

06-26-01

.

Jody K. George,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal Nos. 01994155, 01A12732

Agency Nos. 4F-956-0164-97, 4F-956-0022-01

DECISION

INTRODUCTION

Jody K. George (complainant) timely initiated appeals with the Equal

Employment Opportunity Commission (EEOC or Commission) from two separate

final agency decisions (FAD) of the United States Postal Service (agency),

concerning his complaints of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq, and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

We consolidate the appeals pursuant to 29 C.F.R. � 1614.606.

ISSUES PRESENTED

Complaint No. 1 (Agency Case No. 4F-956-0164-97) (Appeal No. 01994155)

Whether the agency properly dismissed complainant's complaint as moot

when a May 30, 1997 Letter of Warning (LOW) was reduced to a discussion

through a grievance settlement.

Complaint No. 2 (Agency Case No. 4F-956-0022-01) (Appeal No. 01A12732)

Whether the agency properly dismissed complainant's complaint for failure

to state a claim when, on July 28, 2000, complainant was harassed by

his supervisor when she made the invidious commentary that complainant

should know just how long it should take to complete the City-21 route,

she wanted all of the mail delivered, and any time over what she allowed

for delivery would be unauthorized and dealt with later.

BACKGROUND

Complaint 1

During the relevant time, complainant was employed as a Letter Carrier,

T-6 string, at a Post Office in Merced, California. Complainant

had worked with the agency since November 30, 1979. On April 30,

1997, complainant requested one hour and fifteen minutes overtime.

The supervisor of Customer Services (Supervisor I) approved one hour of

overtime for that date. The record reveals that complainant used one

hour and fifty-one minutes of overtime. On May 30, 1997, Supervisor I

issued a LOW dated May 9, 1997 to complainant, charging him with Failure

to Follow Instructions/Unauthorized Use of Overtime. Complainant sought

EEO counseling, and on October 17, 1997, filed a formal complaint alleging

discrimination on the bases of race (Caucasian), color (white), religion

(Christian), sex (male), national origin (Polish), age (D.O.B. 9/23/55)

and retaliation (prior EEO activity).

On November 17, 1997, the agency dismissed complainant's complaint,

finding that the complaint was moot because a grievance settlement

had reduced the LOW to a discussion. The agency reasoned that there

was no reasonable expectation that the alleged violation would recur

and that interim relief had completely and irrevocably eradicated the

effects of the alleged violation. By decision dated March 4, 1999,

the Commission vacated the agency's FAD and remanded the matter for

further processing. See Jody K. George v. United States Postal Service,

EEOC Appeal No. 01981938 (March 8, 1999). The Commission found that

a LOW issued to complainant on October 27, 1997 had to be examined to

determine whether the new discipline was sufficiently similar to the

previous decision, and whether there was no reasonable expectation that

the alleged violation would recur.

In a FAD dated March 24, 1999, the agency again dismissed complainant's

complaint for mootness because the May 30, 1997 LOW was reduced to an

official discussion through a grievance settlement, rendering complainant

no longer aggrieved. The agency further noted that the October 28,

1997 LOW was reduced to documented instructions through a grievance

settlement, as well.

Complaint 2

On July 28, 2000, a supervisor (Supervisor II) told complainant

her expectations concerning time with respect to the City-21 route.

Complainant asked Supervisor II what she wanted him to do if he could not

finish delivering all the mail in the time she had allowed. She would

not respond specifically, but instead made �invidious commentary� about

how long it should take to do the City-21 route. Supervisor II stated

that she wanted complainant to deliver all the mail, but any time over

what she allowed would be unauthorized and dealt with later.

In a FAD dated January 22, 2001, the agency dismissed complainant's

complaint for failure to state a claim, finding that complainant had

failed to show that he was an aggrieved employee.

Complainant's Contentions on Appeal

Complainant contends, among other things, that: 1) the agency continues to

harass and badger him; 2) he was treated differently than his co-workers

with respect to Complaint 2; and 3) he had engaged in protected activity

against the agency during the proximate time of these incidents.

ANALYSIS AND FINDINGS

Complaint 1

EEOC Regulation 29 C.F.R. � 1614.107(a) (5) provides that the agency

shall dismiss a complaint that is moot. To determine whether the issue

raised in the instant complaint is moot, it must be ascertained (1) if it

can be said with assurance that there is no reasonable expectation that

the alleged violation will recur, and (2) if interim relief or events

have completely and irrevocably eradicated the effects of the alleged

violation. See County of Los Angeles v. Davis, 440 U.S. 625(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 as a result of a July 15, 1997 grievance

settlement, the May 30, 1997 LOW was reduced to an official discussion.

In addition, the October 28, 1997 LOW was reduced to a documented

instruction in a March 3, 1998 grievance settlement. However, we note

that complainant's complaint states that he wishes �to be made whole�

and that �fair remuneration be made for [his] efforts to resolve this

complaint.� After reviewing complainant's statements, we interpret

his comments to be a request for compensatory damages. The Commission

has held that a complainant need not use legal terms of art such as

�compensatory damages,� but may merely use words or phrases to put the

agency on notice that a relevant pecuniary or non-pecuniary loss has

been incurred. See Haynes v. United States Postal Service, EEOC Request

No. 05920891 (December 14, 1993); Park v. United States Postal Service,

EEOC Appeal No. 01931280 (December 7, 1993); Banks v. Department of the

Interior, EEOC Request No. 05920680 (March 4, 1994). Assuming arguendo

that complainant were to prevail in this matter, he might be entitled

to compensatory relief. The Commission has long held that the potential

for compensatory damages means that an allegation cannot be dismissed as

being moot without a determination being made as to whether complainant

is entitled to compensatory damages. See, e.g., Watson v. Department of

the Navy, EEOC Request No. 05970452 (January 8, 1999);Huhn v. Department

of the Treasury, EEOC Request No. 05940630 (February 16, 1995); Ellicker

v. Department of Agriculture, EEOC Request No. 05931079 (September 22,

1994); and Salazar v. Department of Justice, EEOC Request No. 05930316

(February 9, 1994). Consequently, Complaint 1 was improperly dismissed

by the agency for being moot.

Complaint 2

EEOC Regulation 29 C.F.R. � 1614.107(a)(1) requires an agency to 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 respect to Complaint 2, we find that complainant has failed to show

that he was aggrieved with respect to a term, condition, or privilege of

employment for which there is a remedy. Supervisor II told complainant

that he should know just how long it should take to complete the City-21

route, she wanted all of the mail delivered, and any time over what she

allowed for delivery would be unauthorized and dealt with later. However,

the record does not establish that these incidents were followed by any

concrete agency action against complainant. See Backo v. United States

Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United

States Postal Service, EEOC Request No. 05940695 (February 9, 1995).

Furthermore, we do not find that the alleged events are sufficiently

severe or pervasive to state a claim of discriminatory harassment.

See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997). Consequently, Complaint 2 was properly dismissed pursuant

to 29 C.F.R. �1614.107(a)(1) for failure to state a claim.

CONCLUSION

Accordingly, the Commission holds that the agency's decision to dismiss

Complaint 1 for mootness was improper, and is therefore, REVERSED and

REMANDED for further processing consistent with this decision and the

order below. With respect to Complaint 2, the Commission holds that the

agency's decision to dismiss Complaint 2 for failure to state a claim

was proper, and is therefore, AFFIRMED.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

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 (K0900)

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 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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0900)

This decision affirms the agency's final decision/action 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 within ninety (90) calendar

days from the date that you receive this decision 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 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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

____06-26-01______________

Date