Marshall Garvin, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 29, 1999
01983548 (E.E.O.C. Apr. 29, 1999)

01983548

04-29-1999

Marshall Garvin, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Marshall Garvin v. United States Postal Service

01983548

April 29, 1999

Marshall Garvin, )

Appellant, )

)

v. ) Appeal No. 01983548

) Agency No. 4-A-100-0089-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On April 10, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on March 23, 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. In his complaint, appellant alleged that he

was subjected to discrimination on the bases of religion (Jewish) and

in reprisal for prior EEO activity when:

On November 12, 1997, appellant's supervisor informed appellant that

he would sit next to appellant all day if appellant's relays were not

ready at 10:30 a.m.;

On January 20, 1998, appellant was advised that he was out of uniform;

Appellant's supervisor lost appellant's request for annual leave for

January 23, 1998, and appellant was required to resubmit another request;

and

Appellant was issued a Letter of Warning (LOW), dated February 6,

1998, for demonstrating a hostile and disrespectful attitude towards

management.

The agency dismissed allegations (1), (2), and (3) pursuant to

EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state a

claim, and dismissed allegation (4) pursuant to EEOC Regulation 29

C.F.R. �1614.107(e), for being moot. Specifically, the agency found

that appellant failed to articulate how he suffered a loss to a term,

condition or privilege of employment from allegations (1), (2), and (3).

Regarding allegation (4), the agency noted that the LOW was rescinded as

a result of a grievance decision on February 14, 1998, and consequently

found that the recission completely and irrevocably eradicated the effects

of the alleged discrimination without any reasonable expectation that

it would recur.

On appeal, appellant alleges that his complaint was improperly processed.

Regarding allegation (3), appellant argues that his supervisor was not

truthful in his statement to the EEO Counselor that he never received

appellant's first leave request. Appellant also argues that allegation

(4) is not moot, because the agency has provided no assurance that

"specious charges" will not be brought against appellant again.

In response, the agency notes that appellant only addressed allegations

(3) and (4), and that appellant still failed to identify a loss that

he suffered as a result of allegations (1), (2), and (3). The agency

argues that the possibility that the matter in allegation (4) will

recur is only speculation. The agency claims that appellant was given

the LOW because he refused to communicate with managers, and that the

LOW was withdrawn because communication was re-established. The agency

attached a copy of the withdrawal of the LOW, which stated the "Reason

for Decision" was "establishment of communication."

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).

Allegations (1), (2), and (3) of appellant's complaint are not accompanied

by concrete agency action. Comments were made to appellant, or he was

required to resubmit a form that he was already required to submit, but

appellant has not alleged harm to a specific term, condition, or privilege

of employment. Accordingly, the agency's dismissal of allegations (1),

(2), and (3) was proper.

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 Commission finds that the agency properly dismissed allegation

(4) because it is moot. The record reveals that as a result of a

grievance appellant filed on February 14, 1998, the LOW was removed from

his records. Since there is no indication of any continuing effect on

appellant from having received the letter, and there is no evidence that

the alleged discrimination will recur, we find that allegation (4) has

been rendered moot. See County of Los Angeles v. Davis, 440 U.S. 625,

631 (1979).

CONCLUSION

Accordingly, the agency's decision to dismiss allegations (1), (2),

(3), and (4) 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:

April 29, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations