0120120159
12-12-2012
Michael A. Gorman, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Michael A. Gorman,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120120159
Agency No. 1C-171-0015-11
DECISION
Upon review, we find that the Agency's decision dated September 16, 2011, dismissing Complainant's complaint for failure to state a claim is proper pursuant to 29 C.F.R. �1614.107(a)(1). For the following reasons, we AFFIRM the Agency's decision.
BACKGROUND
In his complaint, dated September 6, 2011, Complainant alleged discrimination based on disability (knee) when: (1) on June 20, 2011, his supervisor demanded to see his state disability parking placard ID card and walked with him to his vehicle to verify if the ID number matched the number on the disability placard; and (2) on July 9, 2011, he was embarrassed and humiliated when the supervisor asked him on the workroom floor, "what type of therapy or exercise do you do for your knee?" which he refused to answer. The Agency dismissed the complaint for failure to state a claim since there was no evidence Complainant was subjected to any adverse action or was aggrieved as a result of the incidents. Furthermore, the Agency stated that Complainant failed to establish a hostile work environment.
ANALYSIS AND FINDINGS
After a review of the record, we find that Complainant was not aggrieved with regard to a term, condition or privilege of his employment as a result of his supervisor's remark and checking on his parking card. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). With regard to claim (1), Complainant acknowledged that he offered the supervisor to walk with him to his vehicle to verify his parking card. With regard to claim (2), the supervisor indicated that he had both knees replaced and at the relevant time period, he was stretching and merely asked Complainant about knee exercise to make conversation. Complainant acknowledged that he did not answer to the supervisor's inquiry. 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 Complainant was disciplined or subjected to any adverse action as a result of the foregoing incidents. Although Complainant claimed that the alleged incidents constituted harassment, we do not find that the alleged actions were sufficiently severe or pervasive to alter the conditions of her 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 dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
12/12/12
__________________
Date
2
0120120159
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120120159