01a60289_r
04-14-2006
James J. Tucker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James J. Tucker v. United States Postal Service
01A60289
April 14, 2006
.
James J. Tucker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60289
Agency No. 1-G-755-0026-05
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated October 11, 2005, dismissing his formal EEO 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. 29 C.F.R. � 1614.405.
On September 12, 2005, complainant filed the instant formal complaint.
Therein, complainant claimed that he was harassed due to a hostile work
environment, in reprisal for prior EEO activity, as evidenced by the
following incidents:
On May 6, 2005, complainant's supervisor (S), called him into the office
where he received an official discussion, which was in contravention
of his psychotherapist's written order specifying that complainant
be accompanied by another individual when meeting with S or any other
management officials;
On May 16, 2005, complainant's request to see the annual leave list was
denied;
On May 19, 2005, complainant observed three custodians walking across
the work-room floor with coffee cups when on May 6, 2005, he had received
an official discussion about having coffee on the work-room floor;
On June 13, 2005, complainant left behind his �day-minder book,� and as
of June 17, 2005, S did not return to him; and
On June 20, 2005, S forced complainant to meet with him alone in his
office, sending away a worker who agreed to be a witness, again in
contravention of the psychotherapist's written order specifying that
complainant be accompanied by another individual when meeting with S or
any other management officials.
The agency dismissed the complaint for failure to state a claim, finding
that complainant suffered no harm or loss regarding any term or condition
of his employment regarding any of the above described incidents.
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). Moreover, under the
Commission's broad view of reprisal, any adverse treatment that is based
upon a retaliatory motive and is reasonably likely to deter the charging
party, or others, from engaging in protected activity, states a claim.
See Lindsey v. United States Postal Service, EEOC Request No. 05980410
(November. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20,
1998)).
As an initial matter, we find that the agency did not address the instant
complaint as a claim of harassment. In Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of
Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment
is actionable if it is sufficiently severe or pervasive to alter the
conditions of the complainant's employment. 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 viewing
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).
Notwithstanding the agency's failure to address the complaint as a
harassment claim, after a review of the record, we find that complainant
has not set forth an actionable harassment claim. Even viewed together
in the light most favorable to complainant, the described incidents are
not sufficiently severe or pervasive as to adversely affect complainant's
working conditions, or to otherwise create a hostile work environment.
Moreover, regarding claims (1) and (5), to the extent that complainant
is claiming that the two official discussions rendered him aggrieved,
we note that the Commission has consistently held that official
discussions alone do not render an employee aggrieved. See Miranda
v. United States Postal Service, EEOC Request No. 05920308 (June 11,
1992); Devine v. United States Postal Service, EEOC Request No. 05910269
(April 4, 1991). In the present case, we find no claim by complainant
that the discussion was recorded in any personnel or supervisory files,
nor that it can be used as a basis for any subsequent disciplinary action.
See Devine, supra.
Furthermore, we find that complainant does not claim that he was
denied a reasonable accommodation in violation of Section 501 of the
Rehabilitation Act. Moreover, complainant presents no evidence to
show that he is otherwise entitled to have a witness accompany him at
non-disciplinary meetings with management, so as to demonstrate that
the denial of this request renders him aggrieved.
Finally, we find that the identified incidents are not so intimidating
in nature as to deter a reasonable person from pursuing the EEO process.
Accordingly, we find that the instant complaint was properly dismissed;
and, for the reasons set forth herein, we AFFIRM the agency's dismissal.
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 14, 2006
__________________
Date