01a51863
04-14-2005
Richard O'Neal, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast area) Agency.
Richard O'Neal v. United States Postal Service
01A51863
April 14, 2005
.
Richard O'Neal,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast area)
Agency.
Appeal No. 01A51863
Agency No. 4H-327-0180-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 30, 2004, 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (Caucasian), sex
(male), and age (49) when on August 11, 2004, the Manager of Customer
Service verbally abused him while delivering mail.
Complainant claims to have been verbally assaulted by the Manager when
she accused him in a loud and threatening manner of creating problems
in the office on the morning of August 11, 2004. The Manager allegedly
waived her finger at complainant and shouted that he had �better bid
off the route, or else!� Pre-Complaint Counseling Report at 1.
The agency dismissed the complaint claiming that complainant had failed
to state an actionable claim. Specifically, the agency stated that
complainant �failed to show that the comments at issue were part of
pattern of harassment.� Final Agency Decision at 2.
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,
1614.106(a) (2004). 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. Dep't of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The agency is correct. Complainant is not an �aggrieved employee� within
the meaning of the EEOC Regulations. In his complaint, complainant
suggests that the supervisor's attitude and aggressive manner of speaking
to complainant on August 11, 2004 was evidence of harassment. However,
although the manager's behavior may be seen as rude and offensive,
it does not constitute harassment as that concept is understood under
EEO law. The Commission has repeatedly found that claims of a few
isolated incidents of alleged harassment usually are not sufficient to
state a harassment claim. See McDaniel v. Equal Employment Opportunity
Commission, EEOC Appeal No. 01A04246 (Oct. 20, 2000) (citing Philips
v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996));
Banks v. Health & Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995).
Moreover, the Commission has consistently found that remarks or comments
unaccompanied by a concrete agency action usually are not a direct and
personal deprivation sufficient to render an individual aggrieved.
See Backo v. United States Postal Serv., EEOC Request No. 05960227
(June 10, 1996); see also Henry v. United States Postal Serv., EEOC
Request No. 05940695 (Feb. 9, 1995). Complainant does not show that the
agency followed-up the negative remarks with some concrete action that
affected a term, condition, or privilege of complainant's employment.
Complainant therefore fails to state an actionable claim.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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:
April 14, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations