0120080904
03-04-2008
Ronald P. Holt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald P. Holt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080904
Agency No. 4B-020-0065-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 9, 2007, 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 improperly dismissed,
in part, pursuant to 29 C.F.R. � 1614.107(a).
During the relevant period, complainant was a City Carrier at a
Massachusetts facility of the agency. In a formal complaint dated
October 24, 2007, complainant alleged that he was subjected to hostile
work environment harassment on the bases of disability (disabled
veteran), age (over 40), and reprisal for prior protected EEO activity
when a Manager and an Acting Supervisor (1) since April 2007, did not
allow him to park on agency property, (2) on August 9, 2007, informed
complainant that he could not case marriage mail, (3) on June 27, 2007,
issued complainant a letter of warning (LOW), (4) on July 18, 2007,
issued complainant a LOW, (5) on August 8, 2007, told complainant that
he could not leave his mail route for lunch, (6) on August 16, 2007,
assigned complainant to a mail route on which his house was located
but would not allow complainant to take his lunch break at home, (7)
on August 24, 2007, issued complainant a seven day suspension, and (8)
on October 9, 2007, while complainant was in the middle of delivering
mail, instructed complainant to take his lunch break.
In its November 9 final decision, the agency dismissed complainant's
claims regarding disciplinary actions - (3), (4), and (7) - pursuant to
29 C.F.R. � 1614.107(a)(5), citing them as moot. The agency stated that
the disciplinary actions were rescinded and removed from complainant's
record, as he requested as a remedy, so the effects of the alleged
discrimination have been eradicated and there is no reasonable expectation
that such action will recur. In addition, the agency dismissed the
remaining incidents pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
First, we find that the agency inappropriately dismissed the disciplinary
actions alleged in (3), (4) and (7). A complaint is moot and a person is
no longer aggrieved when it can be said with assurance that: (1) interim
relief or events have completely and irrevocably eradicated the effects of
the alleged violation and (2) there is no reasonable expectation that the
alleged violation will recur. See Kuo v. Dep't of the Navy, EEOC Request
No. 05970343 (July 10, 1998). Complainant's complaint (consisting of
(3), (4), and (7)) is a cognizable claim and such a claim is not moot
as both prongs have not been met. We conclude that the agency has not
provided evidence to establish that "there is no reasonable expectation
that the alleged violation will recur."
Second, regarding the remaining incidents, we agree with the agency that
the matters fail to state a claim under EEOC regulations. We find that
complainant failed to present a harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy or
show that he was subjected to action sufficiently severe or pervasive
to alter the conditions of his employment.
After a careful review of the record, we REVERSE the final agency
decision as to (3), (4) and (7) and REMAND those matters for processing
consistent with this decision and the Order below. Contrarily, we AFFIRM
the agency's final decision as to (1), (2), (5), (6), and (8).
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 (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:
March 4, 2008
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
2
0120080904
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120080904