William D. Martin, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas) Agency.

Equal Employment Opportunity CommissionFeb 8, 2000
01a00785 (E.E.O.C. Feb. 8, 2000)

01a00785

02-08-2000

William D. Martin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas) Agency.


William D. Martin, )

Complainant, )

)

v. ) Appeal No. 01A00785

) Agency No. 1H-302-0017-99

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(S.E./S.W. Areas) )

Agency. )

____________________________________)

DECISION

On October 20, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) pertaining to his complaint

of unlawful employment discrimination in violation of the Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791, et seq.<1> In his complaint, complainant alleged that

he was subjected to discrimination on the basis of race (Caucasian), age

(49) and physical disability(left foot impairment), when since 1995,

several of his coworkers have referred to him in derogatory terms,

i.e., �gimpy�, �cripple� and �club foot.� <2> The appeal is accepted

in accordance with EEOC Order No. 960.001. For the following reasons,

the Commission AFFIRMS the agency's final decision.

Complainant alleged in his complaint that since he returned to work from a

job related injury in 1995, coworkers have called him derogatory names in

reference to his disability. He further claims that this treatment caused

him stress and embarrassment The EEO Counselor's report also indicates

that an interview could not be held with complainant within the thirty

day time limit, and complainant refused to extend the time limits.

Also contained in the record is an agency request for information

regarding specific dates on which complainant allegedly discriminated

against. There is no evidence of a response to the agency's request

for information.

On September 22, 1999, the agency dismissed the complaint pursuant to

EEOC Regulation 29 C.F.R. � 1614.107(a) for failure to state a claim.

Specifically, the agency determined that complainant failed to demonstrate

that he suffered direct and personal deprivation as a result of any

agency action. As such, complainant failed to allege that he suffered

harm to a term, condition or privilege of his employment, he was not

aggrieved under the EEOC regulations.

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).

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).

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently

severe or pervasive to alter the conditions of the complainant's

employment. The Court explained that an "objectively hostile or abusive

work environment" is created when "a reasonable person would find [it]

hostile or abusive: and the complainant subjectively perceives it as

such. Harris, supra at 21-22. Thus, not all claims of harassment are

actionable. Where a complaint does not challenge an agency action or

inaction regarding a specific term, condition or privilege of employment,

a claim of harassment is actionable only if, allegedly, the harassment

to which the complainant has been subjected was sufficiently severe or

pervasive to alter the conditions of the complainant's employment.

A complaint should not be dismissed for failure to state a claim unless it

appears beyond doubt that the complainant cannot prove a set of facts in

support of the claim which would entitle the complainant to relief. The

trier of fact must consider all of the alleged harassing incidents and

remarks, and considering them together in the light most favorable to

the complainant, determine whether they are sufficient to state a claim.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,

1997).

However it is well-settled that, unless the conduct is very severe,

a single incident or a group of isolated incidents will not be regarded

as creating a discriminatory work environment. See James v. Department

of Health and Human Services, EEOC Request No. 05940327 (September 20,

1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982). In

the instant complaint, we find that complainant failed to show that

he suffered harm with respect to the terms, conditions or privileges

of his employment as a result of his coworker's actions. Therefore,

even when viewed in a light most favorable to complainant, his claims

are too isolated and insufficiently severe to establish a hostile work

environment. Consequently, his complaint was properly dismissed pursuant

to 29 C.F.R. �1614.107(a), for failure to state a claim.

Accordingly, the agency's final decision is AFFIRMED for the reasons

set forth herein.

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 8, 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:

_________________________

Equal Employment Assistant

__________________________

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.

2The Commission takes notice that complainant filed at least thirteen

complaints on the same day. The Commission cautions complainant that

it retains the right to protect its processes and procedures from

misuse and abuse. However, at present, the Commission will not find

that complainant is abusing its processes. See Kessinger v. USPS, EEOC

Request No. 05970408 (May 30, 1997); Kleinman v. USPS, EEOC Request

No. 05940579 et al. (September 22, 1994); Hooks v. USPS, EEOC Appeal

No. 01953852 et al. (November 28, 1995).