01975812
10-06-1998
Henry Cabone, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Henry Cabone v. United States Postal Service
01975812
October 6, 1998
Henry Cabone, )
Appellant, )
)
v. ) Appeal No. 01975812
) Agency No. 1F-933-0004-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated June 26, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The appellant alleged that the agency harassed him in retaliation for his
prior EEO activity,. Specifically, the appellant alleged that on October
30, 1996, his supervisor allegedly yelled, questioned the appellant about
his limited duty status, told him to do some work, gave him a discussion
without a steward, told him to shut up, and called him a liar. On November
9, 1996, when the appellant when to get a hamper and was speaking briefly
with another employee, allegedly the appellant's supervisor pointed a
finger in the direction in his work area and said, "bye-bye-bye."
The agency dismissed the appellant's allegations for failure to state
a claim because the appellant had not been disciplined or subjected to
any harm regarding any term or condition of his employment.
On appeal, the appellant contends that the incidents cited in this
complaint, and the "petty" harassment described in another complaint
(1F-933-0004-97), clearly show a pattern of harassment following the
settlement of a prior complaint on March 21, 1997. The appellant also
contends that the alleged harassment was to due his permanent disability
(injuries to left thumb and wrist).
The Commission finds that the appellant's complaint does not state
a harassment (hostile work environment) claim under 29 C.F.R. Part
1614. The appellant describes the harassment alleged in another
complaint (1F-933-0004-97) as "petty." The Commission finds that the
appellant's November 9, 1996 allegation similarly involves, at most,
"petty" behavior. As to the appellant's October 30, 1996 allegations,
the remarks allegedly occurred in different contexts that day, including
in response to the appellant's talking with another employee and in
response to the appellant's telling the supervisor that the supervisor
was "not making sense." Even taken together, the alleged remarks are
not sufficient to indicate that the appellant may have been subjected to
agency harassment that was sufficiently severe or pervasive to alter the
conditions of his employment. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996) (supervisor's remarks on several
occasions, unaccompanied by any concrete action, were not sufficient to
state a claim).
Nor has the appellant alleged sufficient facts in this complaint for the
Commission to conclude that the alleged statements, if not prevented from
recurring, would likely deter future protected activity by the complainant
or other employees. See Section 8 of the Commission's new Compliance
Manual on "Retaliation;" and 29 C.F.R. �1614.102(a)(3) and (6).
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's January 17, 1997 complaint.
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:
October 6, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations