0120070514
03-25-2009
Daniel H. Parker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel H. Parker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070514
Agency No. 4H30002306
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 16, 2006, 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 September 29, 2006, complainant alleged that he was subjected to
harassment and discrimination on the bases of race (American1), sex
(male), color (white), and disability (back injury) when on July 28,
2006, his supervisor threatened to transfer him because of a job-related
injury.
The Commission finds that the complaint fails to state a claim under
the EEOC regulations because, although complainant's supervisor may have
threatened to transfer him, complainant was never actually transferred,
and therefore 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). Further, where a complaint does not challenge an
agency action or inaction regarding a specific term, condition, or
privilege of employment, a claim of harassment is actionable only if
the harassment to which the complainant allegedly has been subjected
was sufficiently severe or pervasive so as to alter the conditions of
the complainant's employment. Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993). A single incident or group of isolated incidents
will not be regarded as discriminatory harassment unless the conduct
is severe. Whether the harassment is sufficiently severe to trigger a
violation must be determined by looking at all of the circumstances,
including the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interferes with an employee's
work performance. See Id.; Savings Bank v. Vinson, 477 U.S. 57, 64-65
(1986); 29 C.F.R. �1604.11(a)(d)(1995). The Commission finds that the
instant complaint fails to state a claim under the EEOC regulations
because complainant has failed to show that the supervisor's single
threat of a transfer was sufficiently severe or pervasive so as to alter
the conditions of employment. 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
March 25, 2009
Date
1 We note that, under the statutes and regulations enforced by the
Commission, the term "American" connotes a national origin rather than
a race.
??
??
??
??
2
0120070514
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120070514
4
0120070514