01a52138
05-20-2005
Forrest R. Fauber, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Forrest R. Fauber v. United States Postal Service
01A52138
May 20, 2005
.
Forrest R. Fauber,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52138
Agency No. 4C-250-0004-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
December 14, 2004 decision, 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 in
violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of race (White),
sex (male), and age (DOB: April 7, 1961) when: (1) on October 23, 2004,
acting supervisor, Mr. X, said to complainant in an abusive, sarcastic,
and demeaning manner, �come on now Forrest, it's time to go� and (2)
on October 29, 2004, he was subjected to an official discussion alleging
workplace infractions.
EEOC Regulation 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).
The Commission finds that the agency properly dismissed complainant's
complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107
(a)(1). Regarding issue (1), the Commission has consistently held that
a remark or a comment unaccompanied by a concrete agency action is not
a direct and personal deprivation sufficient to render an individual
aggrieved for the purpose of Title VII. Backo v. United States Postal
Service, EEOC Request No. 05960227 (June 10, 1996). Further, we find
Mr. X's remark to complainant unaccompanied by a concrete agency action
and insufficient to render him aggrieved. With respect to issue (2),
we agree with the agency that there is no evidence in the record that
complainant sustained any personal loss or harm with respect to term,
condition, or privilege of employment when he had an official discussion
alleging workplace infractions.
On appeal, complainant argues that the agency's actions are part of an
ongoing pattern, rather than an isolated instance. As we have previously
held, a single incident or group of isolated incidents are not sufficient
to state a harassment claim and will not be regarded as discriminatory
harassment. See Phillips v. Department of Veterans Affairs, EEOC Request
No. 05960030 (July 12, 1996). The Commission finds that issues (1) and
(2) are isolated incidents insufficient to state a claim of harassment,
and thus, they fail to state a claim. Accordingly, the agency's decision
dismissing complainant's complaint is AFFIRMED
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:
May 20, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations