01A40373_r
03-02-2004
Robert G. Yost, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert G. Yost v. United States Postal Service
01A40373
March 2, 2004
.
Robert G. Yost,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40373
Agency No. 1G-771-0069-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 23, 2003, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
In his formal complaint, filed on July 12, 2003, complainant alleged that
he was subjected to discrimination on the basis of disability (deaf) when:
(1) on January 25, 2003, he became aware that hearing employees were
provided with telephone usage. They were being allowed to use the
telephones free on the workroom floor.
(2) on March 4, 2003, he was hung up on twice when he attempted to call
in to report an absence. He states on the third attempt he utilized
Texas Relay, a third party system used by hearing impaired individuals;
(3) on March 10, 2003, an agency SDO conducted a stand up talk and did
not use an American Sign Language (ASL) interpreter; and
(4) on July 7, 2003, deaf employees were denied accommodation when a
film on sexual harassment was not shown in closed caption and an ASL
interpreter was not made available.
In its final decision, the agency dismissed claims (1), (2) and
(3) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a
claim finding that complainant failed to show that he was aggrieved.
Regarding claim (1), the agency found that according to Manager,
Distribution Operations that there are no telephone made available for
hearing employees to use free of charge in their units. Regarding claim
(2), the agency found that according to Manager, Distribution Operations
that the use of the Texas Relay to communicate with the hearing impaired
employees has been the standard procedure to insure the accuracy of
information being submitted. Regarding claim (3), the agency stated that
according to Manager, Distribution Operations, information concerning
daily 2-minute drills are provided to hearing impaired employees in hard
copy; and that interpreters are only provided for specific meetings that
address major changes or individual performance issues.
The agency dismissed claim (4) pursuant to 29 C.F.R. � 1614.107(a)(1),
on the grounds that it states the same claim raised in a previously
filed EEO complaint (Agency No. 1G-771-0030-03).
Claims (1) - (3)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.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).
Regarding claims (1) and (2), we find that complainant failed to establish
that he suffered a harm or loss regarding a term, condition, or privilege
of his employment. Morever, with respect to complainant's assertion
on appeal, that he has been subjected to a hostile work environment,
we do not find that the events are sufficiently severe or pervasive to
state a claim of discriminatory harassment. See Cobb v. Department of
the Treasury, EEOC Request No. 0597077 (March 13, 1997). Therefore, the
agency properly dismissed claims (1) and (2) for failure to state a claim.
Regarding claim (3), we find that complainant stated a claim of
discrimination affecting a term, condition, or privilege of his
employment. Complainant stated that on March 10, 2003, his Supervisor
conducted a stand up talk and did not use an ASL interpreter. We find
that the Supervisor's alleged conduct of not providing complainant an ASL
interpreter during a stand up talk constitutes a personal deprivation,
i.e., alleged failure to provide a reasonable accommodation, sufficient
to render complainant an aggrieved employee within the meaning of EEOC
Regulations. Thus, we find that the agency improperly dismissed claim
(3) for failure to state a claim.
Claim (4)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
The Commission determines that the alleged incident in the prior complaint
(Agency No. 1G-771-0030-03) and the incident raised in the instant
complaint are not identical. Specifically, the record reflects that
the matter raised in Agency No. 1G-771-0030-03 relates to complainant
being denied a reasonable accommodation when a meeting was held with all
employees in his pay location in which a film was viewed that was not
closed captioned and an ASL interpreter was not present (January 6, 2003).
In contrast, the instant complaint addresses the claim that on July 7,
2003, deaf employees were denied accommodation when a film on sexual
harassment was not shown in closed caption nor was an ASL interpreter
made available. It has long been established that "identical" does not
mean "similar." The Commission has consistently held that in order for
a complaint to be dismissed as identical, the elements of the complaint
must be identical to the elements of the prior complaint in time, place,
incident, and parties. See Jackson v. Department of the Air Force,
EEOC Appeal No. 01955890 (April 5, 1996). The matter raised in Agency
1G-771-0030-03 (complainant being denied a reasonable accommodation
when a meeting was held with all employees in his pay location in which
a film was viewed that was not closed captioned and an ASL interpreter
was not present) does not address the identical issue as raised in the
instant complaint since it concerns an earlier incident. Therefore,
the agency improperly dismissed claim (4) on the grounds that it raises
the same matter that was raised in a prior complaint.
Accordingly, the agency's decision dismissing claims (1) through (2)
was proper and is AFFIRMED. The agency's decision dismissing claim (3)
for failure to state a claim was improper and is REVERSED. The agency's
decision dismissing claim (4) on the grounds that it raises the same
matter that was raised in a prior complaint was improper, and is hereby
REVERSED. Claims (3) and (4) are REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims (claims (3) and (4))
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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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 (T0900)
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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (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
March 2, 2004
__________________
Date