01982109_r
01-05-1999
Bernal A. Otto, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Bernal A. Otto, )
Appellant, )
) Appeal No. 01982109
v. ) Agency No. 4-I-570-0049-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On January 12, 1998, appellant filed an appeal of a November 6, 1997
final agency decision dismissing his complaint. The agency failed
to provide a certified mail return receipt or any other material
capable of establishing the date when appellant received the final
agency decision. Accordingly, the Commission presumes that appellant's
appeal was filed within 30 days of appellant's receipt of the agency's
final decision. Accordingly, the appeal is accepted as timely. See 29
C.F.R. �1614.402(a); EEOC Order No. 960.
Upon review, the Commission finds that the agency's dismissal of
appellant's August 6, 1997 complaint for failure to state a claim pursuant
to 29 C.F.R. �1614.107(a) was proper. The record reflects that appellant
alleged that he was discriminated against on the basis of retaliation on
June 30, 1997, when he relayed a complaint about a letter carrier from
a customer to the Postmaster and the Postmaster became very verbal with
him and accused appellant of complaining.
The record does not establish how appellant was harmed by the alleged
incident or that the incident resulted in any adverse employment action
taken against appellant. Moreover, the Commission has held that a remark
or comment, unaccompanied by concrete action, is not a direct and personal
deprivation sufficient to render an individual aggrieved for the purposes
of Title VII. See Simon v. U.S. Postal Service, EEOC Request No. 05940866
(October 3, 1990). In addition, the record contains no evidence that
the incident amounted to an official discussion or was otherwise made a
part of appellant's personnel file. See Devine v. U.S. Postal Service,
EEOC Request Nos. 05910268, 05910269 and 05910270 (April 4, 1991).
Because appellant has not shown how a term, condition, or privilege of
his employment was affected by the alleged discriminatory incident,
his complaint fails to state a claim. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the agency's final decision 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. 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 (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:
Jan. 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations