0120065181
02-06-2007
Wayne M. Cousin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wayne M. Cousin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200651811
Agency No. 1G772002706
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 11, 2006, 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.
In a complaint dated August 2, 2006, complainant alleged that he was
subjected to discrimination on the basis of race (African-American)
when on May 22, 2006, his supervisor referred to him as "Bubba."
Upon review, the Commission finds that the agency properly dismissed
the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim. In determining whether a harassment complaint states a
claim in a case, such as this one, where a complainant had not alleged
disparate treatment regarding a specific term, condition, or privilege of
employment, the Commission has repeatedly examined whether a 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. National Aeronautics and Space Administration,
EEOC Request No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining
whether a 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. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, 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. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, 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
the complainant's circumstances would have found the alleged behavior to
be hostile or abusive. Even if harassing conduct produces no tangible
effects, a 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. Department 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.
In the instant case, the Commission finds that 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). To the extent that complainant is claiming harassment, the
Commission finds that the incident complained of, while inappropriate if
true, is neither severe nor pervasive enough to create a discriminatory
hostile work environment.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 6, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120065181
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065181