Paul M. Cerny, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 28, 2000
01A10030 (E.E.O.C. Dec. 28, 2000)

01A10030

12-28-2000

Paul M. Cerny, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Paul M. Cerny v. United States Postal Service

01A10030

December 28, 2000

.

Paul M. Cerny,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A10030

Agency No. 4C-150-0072-00

DECISION

On September 19, 2000, complainant filed a timely appeal with this

Commission from an agency decision pertaining to his compliant 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.<1> The Commission accepts the appeal in accordance with 29

C.F.R. � 1614.405.

Complainant contacted the EEO office regarding an oral exchange that

occurred between himself and the Station Manager. Informal efforts

to resolve complainant's concerns were unsuccessful. Subsequently,

on September 5, 2000, complainant filed a formal complaint based on

disability. The agency framed the complaint as follows:

On April 27, 2000, complainant's supervisor told him to shut up or he

would have him removed from the building.

On September 12, 2000, the agency issued a decision dismissing the

complaint on the grounds that it was untimely filed. Moreover, the

agency found that the complaint failed to state a claim.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Here, complainant contends he was discriminated against when the Station

Manager embarrassed him in front of fellow employees and children

who were present on �bring your child to work� day. According to

complainant, the alleged incident occurred when the Station Manager

called everyone together and began explaining that an employee switched

to a level 5 position while getting level 6 pay, which had been approved

by management. At that time, the Station Manager allegedly stated,

directly to complainant, that �he was sick and tired of all the good

workers having to suffer because of the �bad dysfunctional employee going

over his head and complaining all the time.'� When complainant responded,

the Station Manager told him to shut up or he would have complainant

removed from the building. We agree with the agency, that complainant

has failed to show how the alleged event resulted in personal harm

or loss regarding a term, condition, or privilege of his employment.

Further, the Commission has repeatedly found that remarks or comments

unaccompanied by a concrete agency action are not 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). There is no evidence in

the record that the any disciplinary action, or other harm, resulted

from the April 27, 2000 exchange. Accordingly, the agency's decision

to dismiss the complaint for failure to state a claim was proper and is

hereby AFFIRMED.

Because we affirm the agency's decision to dismiss the complaint for

the reason stated herein, we find it unnecessary to address the agency's

decision to dismiss the complaint on alternative grounds.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

December 28, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.