0120092271
08-20-2009
Dale M. Calderone, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dale M. Calderone,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092271
Agency No. 1E801001109
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 24, 2009, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 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 March
12, 2009, complainant alleged that he was subjected to discrimination
on the bases of disability (arthritis) and reprisal for prior protected
EEO activity when:
1. On January 14, 2008, the agency concurred that a safety issue existed
in regarding to a safety form complainant filed;
2. On February 5, 2008 and February 19, 2008, complainant's supervisor
did not properly handle safety forms;
3. On July 21, 2008, complainant's supervisor did not take appropriate
action when he and another employee had an argument;
4. On September 1, 2008, complainant's supervisor tried to create a
confrontation between complainant and another employee;
5. On October 10, 2008, complainant's supervisor banged complainant's
hand with a cage;
6. On October 21, 2008, a co-worker became confrontational when
complainant reported that the co-worker was using a headset;
7. On November 4, 2008, an employee came too close to complainant with
a pallet jack, approached him in a loud, aggressive manner, called him
delusional and complainant's supervisor labeled him a chronic complainer;
8. On December 22, 2008, a co-worker bumped into complainant;
9. On December 31, 2008, a deaf mail handler ran into complainant as he
came out of the Attendance Control room;
10. On January 19, 2009, a co-worker banged complainant's hand with a
piece of empty equipment; and
11. On January 22, 2009 and January 20, 2009, a co-worker intentionally
blocked complainant's path by cutting in front of him and stopping
abruptly, causing physical contact.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that he suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Moreover, the Commission
finds that the events described herein were not so severe or pervasive
to alter the conditions of complainant's employment. Specifically, we
note that on appeal, complainant maintains that the agency's conduct
renders him an aggrieved employee in fear of retaliation. However,
the Commission notes that complainant has failed to demonstrate that
the agency's conduct in this matter caused complainant to suffer any
adverse action which affected a specific term, condition, or privilege
of his employment. In that regard we note that complainant received no
discipline, loss of pay or other agency action affecting his employment.
We find that complainant has failed to demonstrate that he is an aggrieved
employee within the meaning of EEOC Regulations.
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
August 20, 2009
__________________
Date
2
0120092271
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092271