0120121520
06-28-2012
William L. Ball, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
William L. Ball,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120121520
Agency No. 1B106000112
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 7, 2012, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim and for stating the same claims that have been decided by the Agency.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic at the Agency's Westchester P&DC facility in White Plains, New York. On January 12, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to hostile workplace discrimination on the bases of race (Caucasian), sex (male), age (80), and reprisal for prior protected EEO activity under Title VII when: 1) On March 22, 2011, a supervisor accused him of "intimidating" him, and he was told to refrain from entering the maintenance shop when the supervisor was there; 2) On April 4, 2011, his supervisor accused him of conducting union business on Agency time and using Agency computers to do union work; 3) On April 8, 2011, he was put on Emergency Placement without pay until May 9, 2011. Subsequently, per the Settlement dated June 15, 2011 of EEO case no. 1B-106-0020-11, he was awarded 13 days pay which was lost due to the Emergency Placement; 4) On July 3, 2011, he was instructed that he could not wait to clock out in the maintenance shop and told that he would have to wait in the break area; 5) On October 5, 2011, his supervisor asked him in a loud voice if he was on lunch and if he had "punched out"; and 6) On October 18, 2011, his supervisor instructed him to use his authorization card at all times on the TMS lifts and to "log out" when he was finished with the lift. Subsequently, his manager stated that his authorization to use the TMS lift had been canceled due to medical reasons.
In its final decision, the Agency determined that claims 1 - 3 were included in Complainant's prior EEO case no. 1B-106-0020-11. That case was closed with an Agency settlement agreement dated June 15, 2011. Therefore, the Agency dismissed issues 1 - 3 for stating the same claims that have already been resolved by the Agency. Concerning the remaining claims, the Agency found that Complainant is not aggrieved and does not state a viable claim of workplace harassment. Complainant proffers no statement on appeal.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Concerning claims 1 - 3, we find that these claims have already been resolved by the Agency. Therefore, the Agency's dismissal of these claims was proper.
With respect to claims 4 - 6, the Commission finds that the complaint fails to state a claim under the EEOC regulations because 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Further, we find that these alleged Agency actions were not of a type reasonably likely to deter Complainant or others from engaging in protected activities. Moreover, to the extent Complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven to be true, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment. See Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 28, 2012
__________________
Date
2
0120121520
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121520