0120101057
06-17-2010
Robert B. Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Robert B. Mitchell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120101057
Agency No. 4E-990-0002-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated December 10, 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 November 20, 2009, Complainant alleged that he was
subjected to discrimination on the bases of race (Black) and reprisal
for prior protected EEO activity1 when, on October 6, 2009, a co-worker
(Co-worker) made rude and insulting comments to Complainant in the
presence of his supervisor (Supervisor) who failed to take any action.
Complainant asserted in his formal complaint that the Supervisor would
not take action even if the Co-worker called him a "nigger." Complainant,
however, did not allege that the Co-worker actually called him a "nigger."
The record indicated that Complainant and the Co-worker had a disagreement
on October 6, 2009. During the confrontation, according to Complainant,
the Co-worker yelled that Complainant was not a "team player" and that
he was a "worthless carrier."
The agency dismissed the complaint, pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. The instant appeal
followed.
CONTENTIONS ON APPEAL
On appeal, Complainant provided statements from co-workers regarding
Complainant's interactions with the Supervisor, not the Co-worker.
ANALYSIS AND FINDINGS
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. In determining whether a harassment complaint states
a claim in cases where Complainant had not alleged disparate treatment
regarding a specific term, condition, or privilege of employment, the
Commission has repeatedly examined whether Complainant's harassment
claims, when considered together and assumed to be true, were sufficient
to state a hostile or abusive work environment claim. See Estate of
Routson v. Nat'l. Aeronautics and Space Admin., EEOC Request No. 05970388
(February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether Complainant's harassment claims are sufficient to state a hostile
or abusive work environment claim, 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 Phillips v. Dep't. of
Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks
v. Health and Human Serv., EEOC Request No. 05940481 (February 16, 1995).
Moreover, the Commission has repeatedly 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
for the purposes of Title VII. See Backo v. U. S. Postal Serv., EEOC
Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv., EEOC
Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work
environment existed, the trier of fact should consider whether a
reasonable person in Complainant's circumstances would have found the
alleged behavior to be hostile or abusive. Even if harassing conduct
produces no tangible effects, such as psychological injury, Complainant
may assert a Title VII cause of action if the discriminatory conduct
was so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Dep't. of the Army, EEOC Appeal No. 01933866 (November 22,
1995)(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
request for reconsideration denied EEOC Request No. 05970995 (May 20,
1999). Also, the trier of fact must consider all of the circumstances,
including the following: the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with
an employee's work performance. Harris, 510 U.S. at 23.
Taking the events of October 6, 2009, as represented by Complainant,
the Commission finds that Complainant has failed to allege conduct that
was so severe or pervasive to state a claim of harassment. As such,
we find that the Agency's dismissal of the complaint pursuant to 29
C.F.R. � 1614.107(a)(1) was appropriate.
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 17, 2010
__________________
Date
1 The record indicates that Complainant filed a previous EEO complaint,
but there is no information as to which statute he alleged was violated.
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0120101057
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101057