01990225
02-02-2000
Roy S. Silva, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Roy S. Silva v. United States Postal Service
01990225
February 2, 2000
Roy S. Silva, )
Complainant, )
)
v. ) Appeal No. 01990225
) Agency No. 4E-870-0149-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Based on a review of the record, the Commission finds that the agency
properly dismissed complainant's complaint in its September 28,
1998 final decision (FAD) for failure to state a claim.<1> See 64
Fed. Reg. 37,656 (1999) (hereinafter referred to and codified as 29
C.F.R. � 1614.107(a)(1)). Complainant's timely appeal of October
8, 1998, provides no arguments that persuade us to reach a contrary
determination.
The Commission finds that complainant has failed to show how he was harmed
by an official discussion purportedly given him, on June 8, 1998, by his
supervisor for prohibited reasons. See Murphy v. U.S. Postal Service,
EEOC Request No. 05960039 (June 13, 1996). In the instant complaint,
complainant claimed his supervisor continuously harassed and intimidated
him and subjected him to excessive scrutiny. While we recognize that
past Commission precedent has found cognizable claims of a pattern of
harassment and excessive scrutiny,<2> we find, from the facts of the
present case, complainant has presented no evidence of agency actions
that were sufficiently severe or pervasive as to be actionable. See
Riden v. Department of the Treasury, EEOC Request No. 05970314 (October
2, 1998).
Further, in the present case, the Commission also notes that the fact
that complainant may be claiming compensatory damages does not, without
more, make his complaint viable. See Larotonda v. U.S. Postal Service,
EEOC Appeal No. 01933846 (March 11, 1994). Accordingly, the FAD in the
present matter is hereby AFFIRMED.<3>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 2, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.
2See McAlhaney v. U.S. Postal Service, EEOC Request No. 05940949 (July 7,
1995); and Schwartz v. U.S. Postal Service, EEOC Request No. 05960294
(June 27, 1996).
3The Commission is cognizant of complainant's argument on appeal that
the FAD, in effect, defined his complaint too narrowly. The parties are
advised that the Commission's decision has interpreted complainant's
complaint broadly and has still found it fails to state a claim.
However, the Commission also advises the parties that its decision
in this matter should not be construed as barring future complaints,
if any, by complainant where he sets forth with specificity further
alleged actions by his supervisor based on prohibited reasons.