01A32143
06-17-2003
Glenn W. Heisler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Glenn W. Heisler v. United States Postal Service
01A32143
06-17-03
.
Glenn W. Heisler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32143
Agency No. 4H335021502
DECISION
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. Complainant alleged that he was subjected to
discrimination and harassment based on sex (male) when a rural carrier
told him that the station manager referred to complainant as a woman.
After an unsuccessful REDRESS mediation session between complainant
and the station manager, complainant timely filed a formal complaint on
October 31, 2002.
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). It is also well-settled that,
unless the conduct is very severe, a single incident or a group of
isolated incidents are not sufficient to create a discriminatory work
environment, see James v. Department of Health and Human Services,
EEOC Request No. 05940327 (September 20, 1994), nor are claims of a
few isolated incidents of alleged harrassment sufficient to state a
harassment claim. See Phillips v. Department of Veterans Affairs, EEOC
Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services,
EEOC Request No. 05940481 (February 16, 1995).
In the instant complaint, we find that complainant failed to show that
he suffered harm with respect to the terms, conditions or privileges of
his employment as a result of the station manager's comment. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994). Moreover, the claim, standing alone, is insufficient to state a
claim of harassment. Consequently, the complaint was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.<1>
Accordingly, the agency's final 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___06-17-03_______________
Date
1On appeal, complainant further alleged that his work hour schedule
was reduced, thereby diminishing a condition of his employment.
This allegation was not a part of his formal complaint, nor was it the
subject of a settlement agreement. Complainant is advised that should
he wish to pursue this additional instance of alleged harassment, through
the EEO process, he should contact an EEO counselor within 15 days after
he receives this decision. The Commission advises the agency that if
complainant seeks EEO counseling regarding the new claims within the above
15 day period, the date complainant 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 a counselor
regarding these matters, in which case the earlier date would serve as
the EEO Counselor contact date. Cf. Qatsha v. Department of the Navy,
EEOC Request No. 05970201 (January 16, 1998).