0120082940
09-22-2009
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
3
0120082940