Wilson Herbert, Jr., Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 12, 1999
01974636 (E.E.O.C. Jan. 12, 1999)

01974636

01-12-1999

Wilson Herbert, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Wilson Herbert, Jr. v. United States Postal Service

01974636

January 12, 1999

Wilson Herbert, Jr., )

Appellant, )

)

v. ) Appeal No. 01974636

) Agency No. 1-G-701-0057-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The appellant timely filed an appeal with this Commission from a final

decision, dated May 14, 1997, which the agency issued pursuant to EEOC

Regulation 29 C.F.R. �1614.107(a). The Commission accepts the appellant's

appeal in accordance with EEOC Order No. 960, as amended.

The appellant alleged that in retaliation for prior EEO activity, his

supervisor paged him on March 9, 1997.

The agency dismissed the appellant's complaint for failure to state a

claim.

On appeal, the appellant contends that he is alleging harassment by

his supervisor. The appellant indicates that the March 9, 1997 incident

was the third time he and his supervisor had an "unwarranted, unwelcome,

and unnecessary" dialogue.

The proper focus for dismissals of individual EEO complaints under 29

C.F.R. �1614.107(a) is on whether the complainant is allegedly aggrieved

due to an unlawful employment practice in violation of Title VII of

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

the Age Discrimination in Employment Act, as amended, 29 U.S.C. 621 et

seq.; the Equal Pay Act, 29 U.S.C. 206(d); or the Rehabilitation Act,

as amended, 29 U.S.C. 791 et seq. Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997), citing Hishon v. King &

Spalding, 467 U. S. 69, 73 (1984) (complaint states a claim because

Title VII's prohibition of discrimination with respect to an employee's

"terms, conditions, or privileges of employment" includes benefits

that are part of an employment contract and benefits which an employer

chooses, but is not required, to provide its employees). Even where

a complaint does not challenge an agency action or inaction regarding

hiring, termination, compensation or any other specific term, condition,

or privilege of employment, the complaint may still state a claim if

the complaint allegations are sufficient to state a hostile or abusive

environment claim. Id., citing Harris v. Forklift Systems, Inc., 510

U.S. 17, 21 (1993) (harassment is actionable if it is sufficiently severe

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

The Commission finds that, even if proven true, the allegations

raised in the complaint before the Commission in this appeal do

not indicate that the appellant was subjected to harassment that

was sufficiently severe or pervasive to alter the conditions of the

appellant's employment. Accordingly, the Commission finds that the

appellant's complaint does not state a claim under 29 C.F.R. Part 1614.

See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030

(July 12, 1996) (allegations that supervisor had "verbally attacked"

the complainant on one occasion, attempted to charge him with AWOL,

and disagreed with the time the complainant entered into a sign-in log,

were insufficient to state a harassment claim); Backo v. United States

Postal Service, EEOC Request No. 05960227 (June 10, 1996) (a supervisor's

remarks on several occasions, unaccompanied by any concrete action,

were not sufficient to state a claim); Miller v. United States Postal

Service, EEOC Request No. 05941016 (June 2, 1995) (an oral admonishment

was not sufficient to state a hostile work environment claim); Banks

v. Health and Human Services, EEOC Request No. 05940481 (February 16,

1995) (allegations that on one occasion a supervisor threw a file on

the complainant's desk and berated her in a loud voice in the presence

of other employees, causing her embarrassment and humiliation, were

insufficient to state a harassment claim); and Henry v. United States

Postal Service, EEOC Request No. 05940695 (February 9, 1995) (allegation,

that on one occasion a supervisor questioned the complainant about his

requested schedule revisions, did not state a claim).

CONCLUSION

For the reasons stated above, the Commission AFFIRMS the agency's

dismissal of the appellant's undated complaint.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

January 12, 1999

______________

Date Ronnie Blumenthal, Director

Office of Federal Operations