0120090334
02-06-2009
Robert Henry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Robert Henry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Appeal No. 0120090334
Agency No. 4A088006008
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated June 29, 2008, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 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 discriminated on the
bases of sex (male), disability (back injury), age (53), and reprisal
(prior protected EEO activity) when, on March 12, 2008 and continuing,
he was harassed when management requested that he clarify the frequency
and duration of episodes regarding his request for leave under the Family
Medical Leave Act (FMLA), and when on July 16, 2008 he was sent for a
second medical opinion in connection with his request.
The record reveals that on February 21, 2008, complainant requested
leave under the FMLA. Complainant has requested and received FMLA leave
annually since 2003/2004. On March 12, 2008, he was requested to provide
clarification as noted above. On June 5, 2008, the agency notified
complainant that he was required to undergo a second opinion medical
examination in order to determine whether the frequency and duration of
periods of incapacity described in his FMLA certification were accurate.
The agency is permitted to require a second opinion examination under
the provisions of the FMLA.
On July 2, 2008, complainant filed the instant complaint. The agency
dismissed the complaint for failure to state a claim, finding that
complainant had not stated a claim because the actions of which he
complained did not rise to the level of harassment.
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. �
1614.106(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. Dep't of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
After considering all of the circumstances alleged in the present
complaint, the Commission finds that the complaint fails to state a claim
under the EEOC regulations 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); Mackelprang
v. United States Postal Service, EEOC Appeal No., 01A45912 (December
21, 2004). We find that the actions of which complainant complained
are not sufficiently severe or pervasive to create a hostile or abusive
work environment. 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
February 6, 2009
Date
2
0120090334
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120090334