01976698
11-04-1998
Om Kohli, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Om Kohli v. United States Postal Service
01976698
November 4, 1998
Om Kohli, )
Appellant, )
)
v. ) Appeal No. 01976698
) Agency No. 1K-221-0127-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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., and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. �621 et seq. The final agency
decision was received by appellant on August 5, 1997. The appeal was
postmarked September 5, 1997. Accordingly, the appeal is timely (see
29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant contacted an EEO counselor on May 15, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when on April 4 and 5, 1997, appellant was
intimidated, harassed, subjected to the use of profanity and singled
out by his supervisor. Informal efforts to resolve appellant's concerns
were unsuccessful. Accordingly, on June 26, 1997, appellant timely filed
a formal complaint of discrimination on the bases of race (Asian), color
(brown), national origin (India), and age (63).
On August 1, 1997, the agency issued its final decision dismissing
appellant's complaint for failure to state a claim. The FAD determined
that appellant was not aggrieved and that he had not suffered a personal
loss or harm with respect to a term, condition, or privilege of employment
as a result of his supervisor's conduct.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is
at least 40 years of age), and the Rehabilitation Act (discrimination
on the basis of disability) shall be processed in accordance with Part
1614 of the EEOC Regulations.
To establish standing as an "aggrieved employee" within the context of 29
C.F.R. �1614.103, appellant must allege, first of all, that he has been
injured in fact. Hacket v. McGuire Bros., 445 F.2d 447 (3rd Cir, 1971).
Specifically, appellant must allege some direct harm which affects a
term, condition, or privilege of employment. See Riden v. Department of
the Treasury, EEOC Request No. 05970314 (October 2, 1998).
In the instant case, appellant's allegations stem from two isolated
incidents on April 4 and 5, 1997 at which time appellant alleges that
he was intimidated and harassed by his supervisor. The question as
to whether a complainant is allegedly aggrieved due to an unlawful
employment practice for which there is no remedy under the Federal equal
employment statutes, requires a consideration of whether the complainant
has alleged unlawful discrimination regarding hiring, termination,
compensation, or other terms, conditions, or privileges of employment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Even where a complaint does not challenge an agency
action or inaction regarding hiring, or other terms, conditions, or
privileges of employment, the complainant may still state a claim if
the complaint allegations are sufficient to state a hostile or abusive
environment claim. Id., citing Harris v. Forklift Systems, Inc., 510
U.S. 17,21 (1993)(harassment is actionable if it is sufficiently severe
of pervasive to alter the conditions of the complainant's employment).
The Commission finds that the agency properly dismissed appellant's
complaint for failure to state a claim. Specifically, appellant's
allegations concerning the events occurring on April 4 and 5, 1997 are
insufficient to rise to the level of personal harm or loss necessary to
render appellant an aggrieved employee. See Gray v. United States Postal
Service, EEOC Request No. 05951092 (April 21, 1995). Appellant did not
suffer direct and personal deprivation caused by the agency. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
The record herein indicates that no concrete action was taken by the
agency against appellant. Furthermore, proof of harassment requires
evidence of impermissible conduct that is ongoing and continuous;
a few isolated incidents, are not sufficient to show harassment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). Therefore, appellant failed to establish that he suffered
harm as a result of any action by the agency.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint for
failure to state a claim is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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:
November 4, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations