Donald C. Burton, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
01991564 (E.E.O.C. Nov. 4, 1999)

01991564

11-04-1999

Donald C. Burton, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Donald C. Burton v. United States Postal Service

01991564

November 4, 1999

Donald C. Burton, )

Appellant, )

)

)

v. ) Appeal No. 01991564

) Agency No. 1D-272-0034-98

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On December 15, 1998, appellant filed a timely appeal of a final agency

decision, which was dated November 30, 1998, dismissing one allegation

in his complaint, pursuant to 29 C.F.R. �1614.107(a), for failure to

state a claim.

In its final decision, the agency identified the allegations of

appellant's September 21, 1998 complaint as whether appellant was

discriminated against when: (1) on April 30, 1998, he was continuously

harassed by his supervisor when he was told in a loud and threatening

tone that the agency did not recognize the National Alliance Union when

he asked to see a National Alliance representative; and (2) on April 30,

1998, the supervisor followed, chased, and yelled at him through the

building, telling him he'd better not come back to work and to hand in

his badge. The agency accepted allegation (2) for investigation and

dismissed allegation (1) for failure to state a claim.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss

a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.

In order to establish standing initially under 29 C.F.R. �1614.103, a

complainant must be either an employee or an applicant for employment of

the agency against which the allegations of discrimination are raised.

In addition, the allegations must concern an employment policy or

practice which affects the individual in his/her capacity as an employee

or applicant for employment. The agency shall accept a complaint from any

aggrieved employee or applicant for employment who believes that he/she

has been discriminated against by that agency because of race, color,

religion, sex, national origin, age, or disability. 29 C.F.R. ��1614.103

and .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. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Upon review, we find that allegation (1) involved appellant's supervisor's

remark concerning the National Alliance Union. The complaint clearly

indicates that appellant alleged discrimination concerning the manner in

which the supervisor made the statement, i.e., in a loud and threatening

tone, and not the fact that appellant was denied a National Alliance

Union representative. 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. See Henry v. United States

Postal Service, EEOC Request No. 05940695 (February 9, 1995).

Accordingly, the agency's final decision is hereby 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:

November 4, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations