0120091911
07-13-2009
Rodney E. Epps, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rodney E. Epps,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091911
Agency No. 4H-327-0013-09
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated February 19, 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).
During the relevant period, complainant was a City Carrier at a Florida
facility of the agency. On November 3, 2008, complainant initiated
EEO contact alleging that the agency subjected him to a hostile work
environment on the basis of race (African-American) when (1) on September
13, 2008, complainant's carrier case was moved closer to supervisors so
that he could be observed and (2) on September 16, 2008, a supervisor
attempted to conduct a count of complainant's route and supervise
the workroom floor simultaneously, which was unfair and inefficient.
Subsequently, in a formal EEO complaint, complainant reiterated (1) and
(2) and also alleged that (3) between August 2 - 28, 2008, management
generated unfair Individual Weekly Performance Reports shortly after new
routes started and required complainant to case all of his sequence mail,
he had a verbal confrontation with a supervisor, and he was not called
into work on his nonscheduled day following the confrontation, and (4)
on August 28, 2008, management did not allow him to see a union steward.
In its February 19 final decision, the agency dismissed the entire
complaint pursuant to 29 C.F.R. �� 1614.107(a)(1) & (2), for failure to
state a claim and untimely EEO Counselor contact. The agency found that
complainant failed to show that he was aggrieved by the alleged actions or
to present a justification for waiver of the 45-day deadline. The instant
appeal from complainant followed. On appeal, complainant stated that
his focus was on a close relative who had two open-heart surgeries and
insertion of a pacemaker. He stated that, following the second surgery,
he contacted the agency National EEO Office and a Dispute Resolution
Specialist on October 23 & 27, 2008 without response. Complainant
provided a copy of his telephone bill to support his statement.
Complainant alleges that he was subjected to a hostile work environment.
The Commission finds that the complaint fails to state a claim under
EEOC regulations. 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). Further, the actions as
alleged are not sufficiently severe or pervasive to alter the conditions
of complainant's employment. See Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993). Due to the dismissal of the entire complaint for
failure to state a claim, we find it unnecessary to address the alternate
basis of dismissal. Accordingly, we AFFIRM the agency's final decision
dismissing complainant's complaint.
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
July 13, 2009
__________________
Date
2
0120091911
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013