05971059
03-04-1999
Leon A. Puissegur, Jr. Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Leon A. Puissegur, Jr. v. United States Postal Service
05971059
Mar 4, 1999
Leon A. Puissegur, Jr. )
Appellant, )
)
v. ) Request No. 05971059
) Appeal No. 01965444
William J. Henderson, ) Agency No. 1G701115495
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On September 11, 1997, appellant timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Leon
A. Puissegur, Jr. v. Marvin T. Runyon, Jr., Postmaster General, United
States Postal Service, EEOC Appeal No. 01965444 (August 13, 1997). EEOC
Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 29 C.F.R. �1614.407(a). The
party requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy,
29 C.F.R. �1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
Appellant filed a complaint of discrimination on the bases of race
(white) and reprisal (prior EEO complaints). His allegation is set forth,
as follows:
On June 27, 1995, I was informed by another employee that [my supervisor]
was going around telling [this other employee] and other people that I
was a crackpot, I didn't know what I was doing, I hadn't won any EEO
complaints and, he even told one person to stop associating with me.
Since the EEO's were mentioned, I consider this to be of [a] retaliatory
nature. Since [my supervisor] is black, I consider this to be of a
racist nature also.
The agency dismissed appellant's complaint for failure to state a claim
after finding that the conduct complained of constituted nothing more
than a few isolated verbal incidents. The previous decision summarily
affirmed the dismissal. In his request for reconsideration, appellant
argues that the previous decision involved an erroneous interpretation
of law, regulation, and material fact, in that it failed to consider
his claim of character assassination. He also argues that the previous
decision has substantial precedential applications in that it would allow
managers to segregate certain employees from the rest of the work force
by spreading false and malicious rumors about them.
Appellant appears to be arguing that he was subjected to discriminatory
and retaliatory harassment by his supervisor. In order to state a claim
of discriminatory harassment, appellant must show that he was subjected
to conduct that was severe or pervasive enough to alter the conditions
of his employment. Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997). Whether the conduct complained of rises
to the level of discriminatory harassment depends on such factors as the
number, frequency, and severity of the incidents at issue, as well as
whether those incidents involved physical threats or interference with
his job performance. Id.
According to the EEO counselor's report, the supervisor stated that
during a meeting which took place on or before June 27, 1995, someone
from the Department of Veterans Affairs called appellant a crackpot.
The exact date of this meeting is not specified in the record. The phrase,
"I was informed by another employee," in appellant's complaint implies
that appellant was not present at the 1995 meeting. On appeal, appellant
presented a sworn statement from this other employee as a supplement to
his appeal brief. In this statement, the witness indicated that what
the supervisor told the EEO counselor regarding the "crackpot" remark
was false and misleading. The witness also indicated that appellant
was present at the 1995 meeting.
Assuming appellant's allegation to be true, it appears that the
discriminatory and retaliatory harassment to which appellant refers
consists solely of the "crackpot" remark, made at the 1995 meeting,
either by the supervisor or by someone else. That remark may or may not
have been made in appellant's presence. Remarks or comments unaccompanied
by a concrete agency action are not sufficient to state a claim. Cobb,
EEOC Request No. 05970077. Although appellant's witness contradicted
the supervisor's statement to the counselor that someone from the VA
made the "crackpot" remark, the witness never identified who actually
made the remark. Neither appellant nor his witness has identified any
instances of harassment other than the "crackpot" remark. There is
nothing in the record regarding the comments allegedly made by the
supervisor concerning appellant's competence, his prior EEO activity,
or his association with other employees. Moreover, appellant has
neither alleged nor shown that he was actually subjected to physical
threats, ostracism, or any form of conduct stemming from those alleged
remarks that was severe enough to alter the conditions of his employment.
Although appellant argues a great deal about what might happen as a result
of the supervisor's comments, the mere possibility that one could suffer
harm in the future is not enough to state a claim. Kincade v. Department
of Defense, EEOC Request No. 05970335 (July 10, 1998).
In both his appeal and his request for reconsideration, appellant
characterizes the comments allegedly made by the supervisor as "character
assassination," and "false and malicious lies," He thus appears to be
stating a claim of defamation. The Commission has repeatedly held that
an action for defamation per se, which does not affect the employment
relationship, is not a claim of employment discrimination and, therefore,
does not state a claim. Cobb, EEOC Request No. 05970077; Henry v. United
States Postal Service, EEOC Request No. 05940897 (May 18, 1995); Stoughton
v. United States Postal Service, EEOC Request No. 05920894 (May 6, 1993).
Again, neither the counselor's report nor the complaint refers to any
specific instances in which appellant actually was harassed or ostracized
by his fellow employees as a result of the comments allegedly made by the
supervisor at the 1995 meeting. As in Cobb, we find that appellant has
not shown that his job performance or his relationships with his fellow
employees were in any way altered or affected by the comments that he
attributes to his supervisor.
After a review of appellant's request for reconsideration, the
agency's response, the previous decision, and the entire record, the
Commission finds that appellant's request does not meet the criteria
of 29 C.F.R. �1614.407(c), and it is the decision of the Commission to
deny appellant's request. The decision of the Commission in Appeal
No. 01965444 remains the Commission's final decision in this matter.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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.
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:
Mar 4, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat