01a34299_r
02-05-2004
Joseph C. Buentello, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph C. Buentello v. United States Postal Service
01A34299
February 5, 2004
.
Joseph C. Buentello,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34299
Agency No. 4-G-780-0045-03
DECISION
Upon review, the Commission finds that the agency's decision dated May 29,
2003, dismissing complainant's complaint for failure to state a claim
is proper pursuant to 29 C.F.R. � 1614.107(a)(1). The agency defined
the complaint as alleging that complainant was harassed when:
(1) On November 11, 2002, his supervisor followed him to the restroom;
On October 9, 10, 11, 23, and 24, 2002, clerks from another post office
were used to box mail instead of utilizing him on overtime;
On September 23 and 26, 2002, and October 3, 11, 17, 18, and 19, 2002,
he was not allowed union representation;
On October 17, 2002, he was given an official discussion for using sick
leave on a day following a holiday;
On October 24, 2002, his supervisor threatened him and told him to shut
the f�k up twice;
On September 27, 2002, his supervisor interrupted his lunch and customers
were called to his window; and
On November 5, 2002, his supervisor interrupted him while he was
conducting business at the window.
Complainant has not challenged the agency's framing of the complaint.
The Commission has consistently held that a remark or comment
unaccompanied by concrete action is not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of
Title VII. Henry v. USPS, EEOC Request No. 05940695 (February 9, 1995).
There is no evidence in the record that complainant was subjected to any
adverse action affecting his employment as a result of his supervisor's
unprofessional, rude remarks and actions. Specifically, complainant
has not shown how he was harmed with regard to his employment as a
result of the alleged denial of union representation. Furthermore,
management, undisputed by complainant, stated in the EEO Counselor's
Report that clerks qualified to box mail from the Main Office were used on
straight time before bringing any Downtown clerks, including complainant,
on overtime. It appears that no one in complainant's facility, i.e.,
Downtown Office, was utilized to box mail on overtime. Furthermore, there
is no evidence in the record that complainant requested overtime at issue.
With regard to the alleged official discussion, there is no evidence in
the record that it was recorded in any personnel or supervisory files,
nor that it can be used as a basis for any subsequent disciplinary action.
Based on the foregoing, the Commission finds that the complaint fails to
state a claim within the purview of the regulations. Although complainant
claimed that the alleged incidents 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
February 5, 2004
__________________
Date