William J. Hewlett, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 12, 2000
01993118 (E.E.O.C. Jul. 12, 2000)

01993118

07-12-2000

William J. Hewlett, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


William J. Hewlett, )

Complainant, )

)

v. ) Appeal No. 01993118

) Agency No. 4B-020-0155-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

The Commission finds that the agency's decision dated February 4, 1999,

dismissing complainant's complaint for failure to state a claim is proper

pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37,656 (to be

codified as and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)).<1> In

his complaint, complainant alleged that on July 5, 1998, he was subjected

to harassment when he was accused of taking supplies. The Commission

has consistently held that a remark or comment unaccompanied by concrete

action is not a direct and personal deprivation sufficient to render an

individual aggrieved for the purposes of Title VII. Henry v. USPS, EEOC

Request No. 05940695 (February 9, 1995). There is no evidence in the

record that complainant was issued any disciplinary action as a result

of the alleged accusation. Furthermore, although complainant alleged

in his complaint that the subject incident constituted harassment, the

Commission does not find that the alleged action was sufficiently severe

or pervasive to alter the conditions of his employment such as to state a

claim of harassment. See Harris v. Forklift Systems, Inc., 510 U.S. 17,

21 (1993); Cobb v. Department of the Treasury, EEOC Request No. 05970077

(March 13, 1997). Accordingly, the agency's final decision is hereby

AFFIRMED.<2>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 12, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

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.

2On appeal, by letter dated March 30, 1999, complainant raises new

discriminatory claims. Complainant is hereby advised that if he wishes

to further pursue those matters, he shall contact an EEO Counselor within

15 days after he receives this decision. The agency is hereby advised

that if complainant seeks EEO counseling regarding the new claims as

instructed above, the date he filed the appeal statement in which he

raised these claims with the agency shall be deemed to be the date of

the initial EEO contact, unless he previously contacted an EEO Counselor

regarding these matters, in which case the earlier date would serve as

the EEO Counselor contact date. Cf. Oatsha v. Department of the Navy,

EEOC Request No. 05970201 (January 16, 1998).