01A41317_r
04-21-2004
Charles W. Widmer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Charles W. Widmer v. United States Postal Service
01A41317
April 21, 2004
.
Charles W. Widmer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41317
Agency No. 1-G-721-0062-03
DECISION
Complainant filed a timely appeal with this Commission from an agency
final decision dated December 8, 2003, dismissing his complaint of
unlawful employment discrimination brought pursuant to Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq. The Commission accepts the appeal. See 29 C.F.R. � 1614.405.
In his formal complaint, filed on November 5, 2003, complainant, the
manager of the Maintenance Department, alleged that he was the victim of
unlawful employment discrimination on the bases of race and in reprisal
for prior EEO activity, when, from March 29, 2003 to August 23, 2003, the
Plant Manager(herein referred to as �PM�) reassigned the clerk/typist for
the Maintenance Department to another division. Complainant claimed that
he previously filed an EEO complaint against PM, and that she reassigned
the clerk/typist for the purpose of forcing him to quit. Specifically,
complainant claimed that his personal workload increased tremendously,
and prevented him from performing the primary duties of his position.
The agency dismissed the instant complaint for failure to state a claim,
finding that complainant was not subjected to an adverse action when
his clerk/typist was detailed to another division for approximately
five months, and that he failed to show how he was harmed in a term or
condition of his employment.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.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). In determining whether a harassment
complaint states a claim in cases 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). 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).
Here, although complainant contends that the detail of the clerk/typist
out of his division for the time period at issue �tremendously� increased
his personal workload, he provides no evidence to support this claim.
Furthermore, complainant presents no evidence to describe how this
reassignment made his work conditions so adverse that it created a hostile
work environment, or could potentially compel him to quit. Therefore,
under the legal principles set forth above, we find that complainant
fails to present sufficient evidence to show that he was aggrieved by
the action at issue, or was subjected to a hostile work environment.
Accordingly, for the reasons set forth above, we AFFIRM the agency's
decision dismissing the captioned complaint.
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
April 21, 2004
__________________
Date