01a50941
04-26-2005
Joseph A. Terrible, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph A. Terrible v. United States Postal Service
01A50941
April 26, 2005
.
Joseph A. Terrible,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A50941
Agency No. 1F-853-0031-04
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.
The record reflects that on December 1, 2003, complainant and the agency
entered into a settlement agreement arising out of an investigation
of claims of sexual harassment by a co-worker (hereinafter referred
to as �MB�) against complainant. The settlement agreement was in
�full and complete settlement of all outstanding administrative EEO
. . . complaints or appeals filed by [complainant] or on his behalf
relating to any matter that occurred� prior to execution of the agreement.
The agreement provided, in part, for a �met expectations� evaluation for
fiscal year 2003; a commensurate salary pay raise; and a maintenance
of that salary until January 29, 2005, when complainant would either
retire or his saved salary would revert to the highest level within the
Level 16 grade. The agreement also provided that effective January 10,
2004, complainant would voluntarily accept placement into the position
of Operations Specialist, EAS-16, and that complainant would voluntarily
relinquish the position of Manager, Distribution Operations, EAS-22.
On March 31, 2004, complainant, contacted an EEO Counselor and claimed
that he was subjected to discrimination on the bases of sex and in
reprisal for prior EEO activity when on March 20, 2004, he became aware
that the Tucson Plant Manager made threatening and demeaning comments to
other employees about him. Complainant further claimed that the Tucson
Plant Manager's actions on March 20, 2004, reflected a continuation of
twenty years of intimidation. Moreover, complainant claimed that he
has been intimidated into being made a �scapegoat� in an incomplete and
one-sided EEO investigation. Complainant claimed that the Senior Plant
Manager, Human Resources Manager and Tucson Plant Manager conspired to
intimidate him in order to remove him from his Manager, Distribution
Operations position, and ultimately force him to retire.
Informal efforts to resolve the matter were not successful. On May 26,
2004, complainant filed the instant formal complaint and attached a
six-page statement detailing the incidents of harassment he purportedly
suffered over the preceding twenty years of agency employment.
As relief, complainant requested the termination of employment of the
Plant Manager; an investigation of the involvement of the Senior Plant
Manager and the Human Resources Manager to conduct a proper investigation
of the sexual harassment claim of MB; and compensatory damages.
On October 15, 2004, the agency issued a final decision. Therein,
the agency determined that complainant's complaint was comprised of the
following claim:
Complainant alleges that he has been subjected to sexual harassment
and a hostile work environment on a continuing basis for a period of
twenty (20) years in that, on or about March 20, 2004, he heard that
[a named Plant Manager] had made derogatory and threatening remarks
about complainant and complainant's wife.
The agency determined that complainant did not assert, and that the
record did not reflect, that he was subjected to a personal loss or harm
regarding a term, condition, or privilege of his employment due to the
comments purportedly made by the Plant Manager. The agency noted that
complainant stated in his formal complaint that the Plant Manager lied in
the investigation of the case of MB; that complainant was forced by the
Plant Manager to lie in order to protect him; and that this is the reason
that complainant gave up his position as Manager, Distribution Operations.
The agency noted, however, that complainant entered into a settlement
agreement on November 24, 2003, wherein he relinquished his Manager,
Distribution Operations position and that he freely signed the settlement
agreement �without reservation, duress or coercion on the part of anyone.�
On appeal, complainant argues that the charges made by him and other
employees resulted in the employment termination of a Plant Manager
at the agency's Tucson facility. Complainant asserts that a review
of �investigative documents and witness statements� reflect a pattern
of harassment by the Plant Manager against complainant. Complainant
also asserts that the Plant Manager stated that he was going to �set
up� complainant. Complainant asserts that he was forced to relinquish
his position as Manager, Distribution Operations or face termination on
false charges, that were initially made by the Plant Manager.
The Commission determines that the agency properly defined the instant
complaint as being comprised of a claim regarding an incident that
purportedly occurred on March 20, 2004, whereupon complainant was
informed that an agency Plant Manager made derogatory and threatening
remarks to other employees about complainant; and that this incident was
the culmination of years of harassment. The Commission determines that
the complaint fails to state a claim under the EEOC regulations because
complainant failed to show that he suffered harm or loss with respect to a
term, condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
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
April 26, 2005
__________________
Date