Herbert Y. Fong, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 22, 2009
0120082940 (E.E.O.C. Sep. 22, 2009)

0120082940

09-22-2009

Herbert Y. Fong, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Herbert Y. Fong,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120082940

Agency No. 4F-956-0054-08

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated February 19, 2008, dismissing his complaint

of unlawful employment discrimination in violation of Section 501 of

the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29

U.S.C. � 791 et seq. Upon review, the Commission finds that complainant's

complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim. In his complaint, complainant alleged that

he was subjected to discrimination on the basis of disability (both feet)

when: (1) on November 29, 2007, complainant's supervisor refused to

give complainant a copy of a new job offer so that his doctor could review

it, resulting in complainant having to sign the job offer under protest;

(2) complainant was denied a union steward regarding the job offer;(3)

complainant's supervisor refused to give him a copy of his request for

leave; and (4) complainant was told to remove himself from the workroom

floor.

At the time of the events at issue, complainant was a City Letter

Carrier at the agency's Citrus Heights, California Post Office.

The agency dismissed complainant's complaint for failure to state

a claim. The agency found that issues 1 and 2 failed to state a claim

because complainant was attempting to make a collateral attack on the

proceedings of another forum. The agency dismissed issues 3 and 4

because it determined that there was no evidence that complainant was

subjected to any adverse action or that he was denied any entitlement

in relation to a term, condition, or privilege of employment as a result

of the incidents alleged. Specifically, with respect to issues 3 and 4,

the agency found that complainant was not aggrieved because he took the

leave that he had requested and he left that day as he had requested,

regardless of how it came about and therefore, his leave was not denied

and he was not aggrieved. The agency also determined that although

complainant may have felt harassed by the actions he cites, the EEOC

regulations were not intended to be used as a general civility code.

The Commission agrees that complainant failed to state a claim with

respect to issues 3 and 4; therefore, we find that these issues

were properly dismissed. With respect to issues 1 and 2, however,

the Commission is not persuaded that these issues amount to collateral

attacks on the Office of Workers' Compensation Program and the agency's

grievance procedures. Notwithstanding, we find that, to the extent

that complainant is claiming a discriminatory hostile work environment,

the events described, which took place over the course of one day,

even if proven to be true, would not establish that complainant has

been subjected to harassment that was sufficiently severe or pervasive

to alter the conditions of his employment. See Cobb v. Department of

the Treasury, Request No. 05970077 (March 13, 1997). In applying this

standard, the Commission has commonly found that isolated incidents of

remarks or comments, unless particularly severe, do not create 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).

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

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

September 22, 2009

Date

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0120082940

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120082940