01996201
06-19-2001
C. Allen Donelan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
C. Allen Donelan v. United States Postal Service
01996201, 01A02738
June 19, 2001
.
C. Allen Donelan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01996201, 01A02738
Agency No. 1-H-331-0059-99
Hearing No. 150-A0-8082X
DECISION
On May 12, 1999, complainant filed a formal employment discrimination
complaint, alleging harm on the bases of race (Caucasian), religion
(Baptist), sex (male), age, disability, and in reprisal for prior EEO
activity when his supervisor interrupted his lunch hour while he was
representing employees as a union (NAPS) representative. By notice dated
July 13, 1999, the agency accepted the claim. Complainant requested
that the agency alter its definition of the claim to include the bases
of national origin (Irish) and color (white). He also noted that
the official who interrupted his lunch meeting was not his supervisor.
When the agency refused to alter its definition of the claim, complainant
appealed to this Commission (EEOC Appeal No. 01996201).
While EEOC Appeal No. 01996201 was still pending, the agency proceeded
with the processing of his accepted claim. After the agency completed its
investigation, complainant requested a hearing from the EEOC, docketed as
EEOC Hearing No. 150-A0-8082X. An EEOC Administrative Judge issued an
order to dismiss the accepted allegation for failure to state a claim.
The AJ found that complainant suffered no tangible harm, did not suffer
from severe or pervasive harassment, and alleged harm more properly
addressed in the grievance process. The agency implemented the AJ's
order by issuing its own dismissal on January 25, 2000.
On appeal, complainant argues that he suffered harm from the
unprofessional actions of management, the $60 he spent on lunch for the
employees, the �humiliation and embarrassment� suffered by the employees
as they were escorted out of the building, and the interruption to his
duties as a union steward.<1>
EEOC Regulations require the dismissal of complaints that fail to
state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,
complainant must allege harm to a term, condition, or privilege of
employment on the basis of race, color, religion, sex, national origin,
age, disabling condition, or reprisal for prior protected activity.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Hostile work environment harassment is actionable if it
sufficiently severe or pervasive to alter the conditions of complainant's
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
The Commission is consolidating the appeals in 01996201 and 01A02738,
pursuant to its authority in 29 C.F.R. � 1614.606. Regardless of
whether the claims are redefined as complainant requests, he failed
to allege tangible harm to his employment or actionable harassment.
Further, the altercation occurred in complainant's capacity as a union
steward. Complainant should not use the EEO complaint process to raise a
matter more appropriately brought pursuant to the collective bargaining
agreement. See Wills v. Department of Defense, EEOC Request No. 05970596
(July 30, 1998). Therefore, the dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 19, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant also argues that management's action violated the
�no reprisal� clause of his May 19, 1993 settlement agreement.
Such subsequent actions are not grounds for claims of breach, but
are independent claims of discrimination. See Bindal v. Department
of Veterans Affairs, EEOC Request No. 05900225 (August 9, 1990); 29
C.F.R. � 1614.504(c). Further, whether the agency breached the settlement
agreement is pending in a separate case, EEOC Appeal No. 01A00771.