01A41950_r
06-23-2004
Douglas H. Stup, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Douglas H. Stup v. United States Postal Service
01A41950
June 23, 2004
.
Douglas H. Stup,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41950
Agency No. 1K-221-0144-03
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated January 2, 2004, pertaining to 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.; Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on race, color, sex, age, disability, and retaliation. Informal
efforts to resolve complainant's concerns were unsuccessful. On December
5, 2003, complainant filed a formal complaint.
In its final decision, the agency determined that complainant's complaint
was comprised of four claims, that were identified as follows:
(1) On May 13, July 16, and July 31, 2003, complainant's Acting
Supervisor paged him to return to work;
(2) on July 9, 2003, the Acting Supervisor accused complainant of leaving
the work area and embarrassed complainant in front of other employees;
(3) on July 16, 2003, the Acting Supervisor questioned complainant's
absence from the work area; and,
(4) The Acting Supervisor breached the July 23, 2003 Settlement Agreement
of Case # 1K-221-0134-03.
The agency issued dismissed claims (1), (2) and (3) for failure to state
a claim. The agency found that complainant failed to provide any evidence
suggesting that he suffered a personal loss or harm to a term, condition
or privilege of his employment. Regarding claim (4), the breach claim
was "remanded to the Manager EEO Dispute Resolution Specialist . . . for
a written determination" as to whether the agreement was violated.
On appeal, complainant describes several other claims, arguing that the
agency failed to address them in its decision. Complainant contends that
the additional claims and evidence should be investigated by the agency.
Additionally, complaint alleges breach of numerous agreements, including
civil action settlements and collective bargaining agreements.
In response, the agency states that complainant has been counseled on
the eight additional claims he raised on appeal (Case # 1K-221-0134-03).
According to the agency, this case was settled on July 23, 2003.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.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).
In claim (1), the complainant claimed that his Acting Supervisor paged
him to return to his work station when he was on a break or in the
restroom, but failed to do so when black female co-workers were away
from the work area. Similarly, complainant claimed he was questioned
about leaving the work area and embarrassed in front of his co-workers
(claims (2) and (3)). The Commission has repeatedly found that remarks
or comments unaccompanied by a concrete agency action are not a direct
and personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996); Henry v. United States
Postal Service, EEOC Request No. 05940695 (February 9, 1995). Here,
complainant has not shown that the alleged incidents were accompanied
by any concrete action. The Commission also does not find that the
alleged events are sufficiently severe or pervasive to state a claim
of discriminatory harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Regarding claim 4, the Commission determines that the agency properly
remanded this claim to an EEO Manager for a written determination on
the issue of settlement breach
Finally, with respect to the additional claims raised by complainant
on appeal, the record indicates that these claims were the subject of
subsequent counseling; and that these matters were the subject of the
settlement agreement executed on July 23, 2003.
Accordingly, the agency's decision dismissing claims 1 - 3 and remanding
claim 4 was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 23, 2004
__________________
Date