01A13293
08-26-2002
Fred West-Bey, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Fred West-Bey, Jr. v. United States Postal Service
01A13293
August 26, 2002
.
Fred West-Bey, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13293
Agency No. 1D-231-0100-00
Hearing No. 120-A1-4202X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reveals that complainant, a Mail Handler, PS-4, at the
agency's Processing and Distribution Facility, Richmond, VA, filed
a formal EEO complaint on May 12, 2000, alleging that the agency had
discriminated against him on the bases of race (African-American), and
reprisal for prior EEO activity when, on October 22, 1999, complainant
became aware that he had two accidents listed in his safety record.
The two accident reports referred to one incident where complainant was a
victim of an assault by another agency employee.<1> Complainant alleged
that the creation of the reports and the description of the incident
as Violence by Postal Employee was discriminatory and in reprisal for
prior EEO activity. Complainant averred that the reports should have
been described in his safety record as Victim of Assault. As a result
of settlements in other claims, the agency's Safety Specialist expunged
the accident reports involved in the settled claims, but also expunged
from complainant's safety record the reports at issue in this case.
Complainant had requested in his investigative affidavit expungement of
the reports from his safety record.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision without a hearing dismissing the
case because complainant was not aggrieved, and because the case was moot.
The AJ concluded that complainant failed to demonstrate that he suffered
a harm or loss when two accident reports were created and maintained
in his Safety Record until they were purged. The AJ also found that
complainant failed to prove, by a preponderance of the evidence, that
the agency unlawfully discriminated against him on the bases of race
or reprisal when complainant became aware that he had two accidents
listed in his safety record. Also, the AJ found that complainant failed
to demonstrate that similarly situated employees not in complainant's
protected classes were treated differently under similar circumstances
when complainant failed to proffer evidence that such an employee existed.
The agency's final order implemented the AJ's decision.
CONTENTION ON APPEAL
Neither the complainant nor the agency have filed contentions on appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �� 1614.107(a)(1), (5) and 109(b) provide, in
pertinent part, that an AJ shall dismiss an entire complaint, or portion
thereof, that fails to state a claim or that is moot. EEOC regulations
require that a complainant be an 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. Air Force, EEOC Request No. 05931049 (April 22, 1994).
To state a claim under our regulations, an employee must allege and show
an injury in fact. Specifically, an employee must allege and show a
"direct, personal deprivation at the hands of the employer," that is,
a present and unresolved harm or loss affecting a term, condition or
privilege of his employment. Id. A complainant is considered "aggrieved"
if he has suffered direct and personal deprivation at the hands of the
employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133
(March 2, 1990).
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 complainant's complaint are
moot, the fact finder 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); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
We agree with the AJ that complainant did not demonstrate that he suffered
a present harm or loss with respect to a term, condition, or privilege
of employment when he became aware of reports listed as accident reports
that he believed should have shown him as a victim of assault. A review
of the file indicates that the purpose of the reports and the safety
record was to maintain information concerning an employee's injury claim
because any claim for a job-related injury requires that an accident
report be completed. The AJ found that complainant filed Workers'
Compensation (OWCP) claims related to the incident which claims were
also maintained in the safety record file. Also, complainant was not
aggrieved when the other employee, who did not file an injury claim,
did not have a similar record of the incident filed in his safety record.
Concerning whether complainant's claim is moot, the AJ found that
complainant's OWCP was decided, and that the previous settlement had
paid complainant his otherwise unrecovered healthcare and expenses.
Under the circumstances of this claim, we agree with the AJ that
complainant, having been compensated for his claims and having had the
accident records expunged, that there was no reasonable expectation that
the alleged violation would recur; and that interim relief or events
have completely and irrevocably eradicated the effects of the alleged
discrimination. To the extent that complainant was being treated for
stress, the AJ found that complainant did not proffer any evidence that
the stress was related to or arose from the fact that accident reports
had been maintained in complainant's safety record.
CONCLUSION
After a careful review of the record, the Commission finds that the
dismissal was appropriate. We find that the AJ's decision properly
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. Further, construing the evidence to be most favorable
to complainant, we note that complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
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 (S0900)
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 (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
August 26, 2002
Date
1 The other agency employee did not file a claim that he was injured
and did not have a record of the incident placed in his safety record.