01A62491
09-22-2006
John J. Pell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John J. Pell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A62491
Agency No. 4B-018-0006-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated January 30, 2006, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
Complainant initiated EEO Counselor contact on October 12, 2005. In his
formal complaint, filed on January 21, 2006, complainant claimed that
he was subjected to unlawful discrimination on the bases of disability
and in reprisal for prior protected EEO activity.
On January 30, 2006, the agency issued the instant final decision.
Therein, the agency determined that complainant's complaint was comprised
of the following claims:
1. September 2, 2005, [complainant was] accused of delaying mail and
failing to follow instructions; and
2. September 7, 2005, [complainant was] threatened with discipline or
reassignment if [he] did not "turn [his] numbers around in two weeks."
The agency dismissed complainant's complaint. The agency determined
that complainant's complaint comprised a harassment claim; however, the
agency concluded that the alleged incidents were not sufficiently severe
or pervasive to state an actionable claim of harassment. In addition,
in its final decision, the agency stated that "when you filed your formal
complaint on January 21, 2006, you claimed for the first time that on
September 2, 2005, [a named Postmaster] 'called you into his office
and closed the door contrary to an EEO settlement and meeting held in
April 2005.' As such, it appears that you are raising an alleged breach
of a settlement agreement." The agency cited 29 C.F.R. � 1614.504(a),
which provides, in part, that if complainant believes the agency has
failed to comply with the terms of a settlement agreement, the complainant
shall notify the EEO Director, in writing, of the alleged noncompliance.
In its final decision, the agency informed complainant that he could
contact the EEO Director regarding the breach claim. The agency further
informed complainant that "any alleged settlement breach will not be
adjudicated with the instant complaint."
On appeal, complainant asserts that the agency's final decision dismissing
his complaint is improper. Complainant states that he was intimidated,
bullied, and threatened.
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. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive:" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
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). Upon review of the record, the Commission finds that the
alleged incidents are not sufficiently severe or pervasive to state an
actionable claim of harassment. Moreover, the alleged agency actions
were not of a type reasonably likely to deter complainant or others from
engaging in protected activity.
Finally, we find that the agency, in its final decision, properly
informed complainant that if he wished to pursue a settlement breach
claim, he should contact the agency's EEO Director in writing, pursuant
to 29 C.F.R. � 1614.504(a).
Accordingly, we AFFIRM the agency's final decision dismissing
complainant's 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
9/22/2006
Date
2
01A62491
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
01A62491