01983796
05-12-2000
Donald C. Burton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Donald C. Burton v. United States Postal Service
01983796
May 12, 2000
Donald C. Burton, )
Complainant, )
)
v. ) Appeal Nos. 01983796
) 01983797
William J. Henderson, ) 01983798
Postmaster General, ) Agency Nos. 1D-272-0003-98
United States Postal Service, ) 1D-272-0007-98
Agency. ) 1D-272-0002-98
)
DECISION
Initially, we note that the three complaints filed by complainant have
been consolidated by the Commission for review pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and
hereinafter cited as 29 C.F.R. � 1614.606).<1> Upon review, we find that
the complaints were properly dismissed pursuant to 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(1)), on the grounds of failure to state a claim.
In Agency No. 1D-272-0003-98, complainant claimed that he was
discriminated against when on August 25, 1997, he was not allowed to
see a National Alliance for Postal and Federal Employees representative,
and he was not permitted to see a mailhandler shop steward. In Agency
No. 1D-272-0007-98, complainant claimed that he was discriminated against
when (1) on October 23, 1997, he was told by the Acting Supervisor that
he was receiving a discussion because he did not work on his off day
Sunday; and (2) on October 24, 1997, he was relieved of dumping at P-1 by
a junior female mailhandler. In Agency No. 1D-272-0002-98, complainant
claimed that he was discriminated against when (1) on August 26, 1997,
he requested a shop steward representative of the National Alliance
and his request was denied; and (2) on August 26, 1997, he requested
a mailhandler shop steward and this request was denied. The agency
accepted claim (2) of Agency No. 1D-272-0002-98 for investigation.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.107(b))
provides that where an agency decides that some but not all of the
claims in a complaint should be dismissed, the agency shall notify
the complainant of its determination; however this determination is not
appealable until final action is taken on the remainder of the complaint.
Based on recent correspondence from the agency, it appears that claim
(2) of Agency No. 1D-272-0002-98 was the subject of a final decision
issued on November 12, 1998,<2> rendering the claim pending herein the
only remaining viable matter. Therefore, we shall issue a decision on
the remaining claim in the complaint.
A fair reading of the complaints indicates that complainant claims that
he was subjected to harassment. However, unless the conduct is very
severe, a single incident or a group of isolated incidents will not be
regarded as discriminatory harassment. Walker v. Ford Motor Company,
684 F.2d 1355 (11th Cir. 1982). We find that the alleged incidents,
considered as one claim of harassment, lack sufficient severity or
pervasiveness to constitute harassment. Further, complainant's claims in
Agency No. 1D-272-0003-98 and the first claim of Agency No. 1D-272-0002-98
concern collective bargaining matters and not EEO matters. Therefore,
these claims are not within the purview of the EEOC Regulations.
With regard to Agency No. 1D-272-0007-98, we find no claim by complainant
that the discussion was recorded in any personnel or supervisory files.
The Commission has consistently held that official discussions alone do
not render an employee aggrieved. See Miranda v. United States Postal
Service, EEOC Request No. 05920308 (June 11, 1992); Devine v. United
States Postal Service, EEOC Request Nos. 05910268, 05910269, and 05910270
(April 4, 1991). As for the claim that complainant was relieved on one
date of dumping at P-1, we find that complainant has not established that
he suffered a personal loss or harm with respect to a term, condition, or
privilege of his employment as a result of the alleged action. Therefore,
we find that these complaints were properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1), for failure to state a claim.
The agency's decisions are AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 12, 2000
_______________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 There is no evidence that complainant filed an appeal with the Commission
from the agency's November 12, 1998 decision.