0120091062
05-28-2009
Robert L. Aplin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert L. Aplin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091062
Agency No. 4G870007508
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 22, 2008, dismissing his complaint 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the
Commission finds that complainant's complaint was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
In a complaint dated September 11, 2008, complainant alleged that he
was subjected to discrimination on the bases of sex (male), disability,
and age (63) when he was issued a letter of warning on May 23, 2008.
The letter of warning was for failure to make the required "attempt"
scan on a piece of express mail. The letter of warning was rescinded
through the grievance process.
The record reveals that as a result of a grievance the LOW was removed
from his records with the notation "management may hold a discussion." The
Commission has previously held that a Letter of Warning reduced to a
discussion no longer constitutes a disciplinary action. Yeats v. United
States Postal Service, EEOC Request No. 05940605 (October 27, 1994);
Gafforino v. United States Postal Service, EEOC Request No. 05910847
(December 30, 1991). Since there is no indication of any continuing
effect on complainant from having received the letter, and as any
discussion is not in itself a disciplinary action, we find that
complainant is no longer aggrieved. Accordingly, complainant's complaint
was rendered moot. See County of Los Angeles v. Davis, 440 U.S. 625,
631 (1979).
In his appeal complainant asserts he was harmed and points to the
Commission decision in Cooley v. USPS, Appeal No. 0120083247 (December
18, 2008). In that case, a complainant raised claims of harassment in
a grievance and an EEO complaint. The grievance was settled, awarding
the complainant $100.00. The EEO matter was dismissed as moot and the
complainant filed an appeal with the Commission. The Commission found
it was not moot because the matter stated a claim of harassment and
the grievance settlement did not address claims for discrimination.
Further, the harassment extended beyond the time period of the grievance.
In the instant case, the letter of warning was rescinded through the
grievance process and as such does not state a claim. Thus, the matter
is distinguishable from Cooley. Although complainant claims to have
suffered damages as a result of the incident at issue, the Commission
has held that allegations that fail to state a claim cannot be converted
into a viable claim merely because the complainant requests compensatory
damages as a remedy. Ulanoff v. United States Postal Service, EEOC Request
No. 05950396 (January 26, 1996); Shrader v. Department of Agriculture,
EEOC Appeal No. 01961499 (November 3, 1997).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 28, 2009
__________________
Date
2
0120091062
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091062