01994788
10-20-1999
Ronald I. Nance, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ronald I. Nance v. United States Postal Service
01994788
October 20, 1999
Ronald I. Nance, )
Appellant, )
)
v. )
) Appeal No. 01994788
William J. Henderson, ) Agency No. 1-D-272-0018-99
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On May 25, 1999, appellant filed a timely appeal with this Commission from
a final agency decision (FAD), dated May 17, 1999, dismissing three of
four allegations raised in his complaint, for failure to state a claim.
The Commission accepts the appeal in accordance with EEOC Order No. 960,
as amended.
Appellant filed an EEO complaint, on April 2, 1999, alleging
discrimination based on retaliation and disability. The agency defined
the allegations as follows:
On January 14, 1999, appellant and co-workers were given a discussion
which reflects increased supervisor scrutiny against limited duty
personnel;
On February 12, 1999, appellant was required to work in a fog of cement
dust and as a result, he was out two hours on February 14, 1999, and
the following Monday and Tuesday;
On February 20, 1999, appellant was working in P-3 and the Manager
asked him who told him to work there; and,
On an unspecified date, appellant's PS Form 1767 was not returned within
a forty-eight hour period because the Manager had not signed it.
The agency dismissed allegations 1, 3, and 4 for failure to state a claim.
Allegation 2 was accepted for investigation.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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). 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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
In allegation 1 appellant contends that he and co-workers were given
a discussion. The Commission has consistently held that official
discussions, unless documented, do not constitute a sufficient injury
in fact to make an employee aggrieved under Title VII. See Clifton
v. U.S. Postal Service, EEOC Request No. 05930326 (March 24, 1994).
Here, there is nothing which suggests that the discussion in question
was documented, nor has appellant identified how he has been harmed by
the discussion. Therefore, we find that the agency properly dismissed
allegation 1 for failure to state a claim.
Appellant alleges in allegation 2 that the Manager asked him who had
directed him to work in P-3. We find that appellant has failed to
established how he was aggrieved by the remark. Moreover, 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. U.S. Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. U.S. Postal Service, EEOC Request No. 05940695 (February
9, 1995). Accordingly, allegation 2 was properly dismissed pursuant to
29 C.F.R. �1614.107(a).
The Commission finds that allegation 4 also fails to state a claim.
Appellant was not rendered an "aggrieved employee" when he did not
receive his PS Form 1767 within 48 hours.
We note that on appeal, appellant contends that he has suffered
"unrelenting harassment". Allegations 1, 3, and 4 did not render
appellant aggrieved. We also find that they are insufficient to state
a claim of discriminatory harassment. Even considering allegations 1,
3, and 4 in conjunction with allegation 2, which has been accepted for
investigation, we find that the incidents addressed in allegations 1,
3, and 4 do not state a claim of harassment. See Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Accordingly, we AFFIRM the agency's decision to dismiss allegations 1,
3, and 4 for failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
10/20/1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations