01a55531_r
01-13-2006
Frank Dominguez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frank Dominguez v. United States Postal Service
01A55531
January 13, 2006
.
Frank Dominguez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55531
Agency No. 4F-920-0072-05
DECISION
Upon review, the Commission finds that the agency's decision, dated July
29, 2005, dismissing complainant's complaint for failure to state a claim
is proper pursuant to 29 C.F.R. � 1614.107(a)(1). In his complaint,
dated June 8, 2005, which was later amended, complainant alleged
discrimination in reprisal for prior EEO activity when: on March 9,
2005, he was verbally assaulted and almost physically assaulted by his
coworker; on March 23, 2005, the same coworker came into the bathroom
and started mocking him which created a hostile work environment; on
March 26, 2005, the coworker taunted him and made noises at him several
times and management will not stop his harassment; and on May 26, 2005,
his supervisor failed to take action to provide him a work environment
free of hostility and harassment when he was again subjected to the
coworker yelling at him.
In response to the complaint, the supervisor stated that both complainant
and the coworker constantly made reports about each other. The supervisor
also stated that the complaints from both of them were investigated
but could not be substantiated due to other coworkers who took sides
depending on which employee they liked. The supervisor indicated that
the two employees were instructed not to talk to each other and to
avoid interaction. The supervisor indicated that management did not
witness any physical assaults nor the alleged incident that occurred in
the bathroom. There is no evidence in the record that complainant was
subjected to any adverse action on the part of the agency with regard to
his employment as a result of the alleged relationship with the coworker.
Although complainant claimed that his poor relationship with the coworker
constituted harassment, the Commission does not find that the alleged
actions were sufficiently severe or pervasive to alter the conditions
of his employment such as to state a claim of harassment. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). Accordingly,
the agency's decision 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
January 13, 2006
__________________
Date