0120101172
06-18-2010
Rey G. Salanga, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Rey G. Salanga,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120101172
Agency No. 1F-904-0047-06
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 14, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
In a complaint dated October 28, 2009, Complainant alleged that he was
subjected to discrimination on the bases of race (Filipino), national
origin (Philippines), sex (male), and reprisal for prior protected EEO
activity when:
1. On March 14, 2006, Complainant was spoken to in an unprofessional
manner when his supervisor pointed his finger at him, spoke in a loud
voice, and threatened Complainant with discipline;
2. On January 15 and 16, 2008, Complainant was verbally assaulted;
3. During January 2008, Complainant's non-scheduled days were changed
to accommodate sending a co-worker to off-site training;
4. On March 17, 2008, Complainant's non-scheduled days were again changed
to accommodate sending a co-worker to off-site training; and,
5. On April 7, 2008, Complainant was informed that his training schedule
had been cancelled.
In its final decision, the Agency dismissed the complaint on the grounds
that Complainant failed to state a claim with respect to claims 1 & 2.
While conceding that Complainant may have been "disrespected," the Agency
emphasized that Complainant was not "subjected to any adverse action
[nor was he] denied any entitlement in relation to a term, condition or
privilege of employment." The Agency dismissed the remaining claims
on the grounds that those claims are currently pending before the
Commission.
CONTENTIONS ON APPEAL
Complainant raised no new contentions on appeal, and the Agency continues
to adhere to its position as explicated in its final decision.
ANALYSIS AND FINDINGS
Claims 1 & 2
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides 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 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). An "aggrieved
employee" is defined 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).
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). To the extent that Complainant
is alleging that the remarks constituted harassment, the Commission
notes that unless the conduct is severe, a single incident or group of
isolated incidents will not be regarded as a claim of discriminatory
harassment, Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993),
unless the complaint tends to show that all of the alleged incidents,
taken together, reveal the existence of a hostile work environment.
The Commission agrees with the Agency that, with respect to claims 1
& 2, Complainant has failed to state a claim because he cannot show
the existence of a hostile work environment and because Complainant
failed to show that he suffered harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). We also find that the matters in claims 1 and 2
would not reasonably likely deter protected EEO activity.
Claims 3-5
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the Agency or
Commission. Regarding claims 3-5, the Commission finds that Complainant
previously raised the identical claims in a complaint 1F-904-0064-08,
and the Agency processed the claims.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
June 18, 2010
__________________
Date
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0120101172
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101172