0120063999
11-15-2006
John R. Soloko, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John R. Soloko,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200639991
Agency No. 4J-480-0035-06
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 12, 2006, dismissing his formal 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 the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
In the instant complaint, filed on June 1, 2006, complainant claimed
that he was subjected to discrimination on the bases of sex, age, and
in reprisal for prior EEO activity when:
1. on March 17, 2006, he was threatened with discipline;
2. on May 3, 2006, he was hit by another employee; and
3. on May 16, 2006, he was questioned regarding the May 3, 2006 incident.
In its June 12, 2006 final decision, the agency dismissed the complaint
for failure to state a claim. Specifically, the agency stated that
complainant was not an "aggrieved employee" because a term, condition or
privilege of his employment was not affected by the actions of management
officials. Furthermore, the agency concluded that the alleged acts
identified in these claims did not rise to the level of harassment.
EEOC regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, complainant
must allege harm to a term, condition, or privilege of employment on
the basis of race, color, religion, sex, national origin, age, disabling
condition, or reprisal for prior protected activity. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Hostile
work environment harassment is actionable if it sufficiently severe
or pervasive to alter the conditions of complainant's employment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Regarding claim 1, the Commission determines that complainant did not
suffer a personal loss or harm regarding a term, condition or privilege
of his employment. Moreover, the Commission determines that the matter
at issue in claim 1 is insufficient to state a claim of harassment.
Finally, the alleged agency action was not of a type reasonably likely
to deter complainant or others from engaging in protected activity.
Regarding the matters that the agency identified as claims 2 and 3,
we find that although the agency bifurcated these two matters into
two separate claims, a review of the record reveals that these matters
constitute basically one single claim, regarding complainant being struck
by an agency employee, and the agency taking no action. In so finding, we
find that complainant stated a claim of discrimination affecting a term,
condition, or privilege of his employment. Specifically, we note in his
complaint, complainant claimed that on May 3, 2006, a female co-worker
struck him with her fist because she was upset she did not get a bagel.
Complainant further claimed that "we weren't playing, as management
contends." Complainant claimed that a few years previously when he
accidentally touched another employee "I got removed for this, - but when
[female co-worker] assaulted me, management ignored this incident and took
no discipline towards her." We find that the agency's conduct in this
matter constitutes a personal deprivation sufficient to render complainant
an aggrieved employee within the meaning of EEOC regulations. 2
In summary, the agency's dismissal of claim 1 is AFFIRMED. The agency's
dismissal of the matter identified as claim 2 and 3 is REVERSED.
This matter, as identified herein, is REMANDED to the agency for further
processing in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim (complainant was
struck by a co-worker and the agency took no action) in accordance with 29
C.F.R. � 1614.108 et seq. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
November 15, 2006
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 The agency stated that an identified employee had stated that he
witnessed the female co-worker and complainant "playing around" when she
playfully smacked complainant in the chest. However, this goes to the
merits of the instant claim, and is irrelevant to the procedural issue
of whether complainant has stated a justiciable claim. See Ferrazzoli
v. USPS, EEOC Request No. 05910642 (August 15, 1991).
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0120063999
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120063999