01981818
08-04-1999
Michael Malone, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Region), Agency.
Michael Malone v. United States Postal Service
01981818
August 4, 1999
Michael Malone, ) Appeal No. 01981818
Appellant, ) Agency No. 4H-335-0004-98
v. )
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W. Region), )
Agency. )
DECISION
Appellant timely initiated an appeal from a final agency decision
("FAD") concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted pursuant to the
provisions of EEOC Order No. 960.001. In his complaint, appellant
alleged that he was subjected to reprisal for prior EEO activity when
he was told by a Manager to shut-up and case his mail. In its FAD,
the agency dismissed the complaint on the basis that appellant failed to
establish that he failed to state a claim in that he was not aggrieved.
See 29 C.F.R. �1614. 107(a). For the reasons set forth below, the FAD
is AFFIRMED.
An agency shall accept a complaint from any aggrieved employee who
believes that he or she has been discriminated against by that agency
because of race, color, religion, sex, national origin, reprisal, age or
disabling condition. 29 C.F.R. �1614.103; �1614.106(a). The Commission
has held that while its Regulations do not define the term "aggrieved
employee," the U.S. Supreme Court has interpreted it to mean an employee
who suffers a present harm or loss with respect to a term, condition or
privilege of employment for which there is a remedy. Thus, to state a
claim under our Regulations, an employee must allege and show a direct
and personal deprivation at the hands of the employer; that is, the
employee must allege and show a present and unresolved harm or loss
affecting a term, condition or privilege of his or her employment.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
The Commission finds that appellant has not identified any present harm
or loss with respect to a term, condition or privilege of employment.
See Kim v. Department of the Army, EEOC Request No. 05940875 (April
13, 1995). While appellant repeats on appeal his contention that the
Manager yelled at him, in the presence of others and in a belligerent
and caustic manner, a mere verbal exchange does not, without some
showing of injury in fact, render the complainant aggrieved. See Poulos
v. Department of Health and Human Services, EEOC Request No. 05920721
(February 11, 1993). Moreover, unless severe, a single such incident
or several isolated incidents will not be render appellant aggrieved.
Here, the conduct complained of amounts to no more than an isolated
comment, petty slight or trivial annoyance. See Moore v. United States
Postal Service, EEOC Appeal No. 01950134 (April 17, 1997). Therefore,
after a careful review of the record, the Commission AFFIRMS the agency's
dismissal of the complaint for failure to state a claim.
STATEMENT OF RIGHTS-ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request
containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
August 4, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations