Gary Lett, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 16, 2000
01a02019 (E.E.O.C. May. 16, 2000)

01a02019

05-16-2000

Gary Lett, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Gary Lett, )

Complainant, )

)

v. ) Appeal No. 01A02019

) Agency No. 4E-852-0120-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �

1614.107(a)(1)).<1> Complainant alleged that he was discriminated

against on the bases of age (DOB 5/8/52), physical and mental disability

(brain damage), and in reprisal for prior EEO activity when, on April 23,

1999, his supervisor harassed him by pointing his finger at his face,

said he was giving him a direct order, yelled at him, and told him to

follow him up front.

A claim of harassment is actionable only if, allegedly, the harassment

to which the complainant has been subjected was sufficiently severe

or pervasive to alter the conditions of the complainant's employment.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997). In determining whether a harassment complaint states a

claim, the Commission has repeatedly examined whether a complainant's

harassment allegations, when considered together and assumed to be true,

were sufficient to state a hostile or abusive work environment claim. Id.

Additionally, the Commission has repeatedly found that claims of a few

isolated incidents of alleged harassment usually are not sufficient to

state a harassment claim. See Phillips v. Department of Veterans Affairs,

EEOC Request No. 05960030 (July 12, 1996); See Cobb, supra.

Here, complainant alleges he was harassed when his supervisor pointed

his finger at his face and yelled at him while giving him orders.

Complainant, however, has only articulated one alleged instance of

isolated harassment as contributing to a hostile work environment.

We find that complainant has failed to show that he suffered harm with

respect to the terms, conditions or privileges of his employment as

a result of the incident identified, and that he has not demonstrated

that the conduct that he complains of is so severe or pervasive that it

has tainted the work environment. Therefore, as the incident complained

of by complainant does not rise to the level of harassment, it fails to

state a claim..

Accordingly, the agency's final decision dismissing complainant's

complaint is 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 16, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date 1On 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.