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.