0120101962___0220090003
04-29-2010
Ronald W. VanZandt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Ronald W. VanZandt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal Nos. 0120101962
02200900031
Agency No. 4J-460-0134-08
DECISION
Complainant, a Carrier at the Southport Station in Indianapolis, Indiana,
filed a timely appeal with this Commission from the agency's decision
dated November 12, 2008, dismissing his complaint of unlawful employment
discrimination in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. 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.
In a complaint dated October 30, 2008, complainant alleged that he was
subjected to discrimination on the basis of age (42) when, from July 2,
2008 through July 28, 2008, he was given impossible assignments because
he is not as fast as the younger carriers.2
On appeal, complainant, among other things, asks that his case be
reconsidered. The agency asks the Commission to affirm its dismissal
of the complaint.
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,
1996); Banks v. Health and Human Services, EEOC Request No. 05940481
(February 16, 1995). Moreover, the Commission has repeatedly found that
remarks or comments unaccompanied by a concrete agency action usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. United States
Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No.05940695 (February 9, 1995).
The Commission finds 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). Furthermore, we do not find
that the conduct complainant was allegedly subjected to was sufficient
to state a hostile or abusive work environment claim. Accordingly, the
agency's final decision dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the Court 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
___4/29/10_______________
Date
1 The Commission administratively closes the record listed under docket
number 0220090003 because it was incorrectly docketed. Although the
Commission is closing 0220090003, we are addressing complainant's appeal
under the new designation, EEOC Appeal No. 0120101962. All future
correspondence regarding this matter should reference EEOC Appeal
No. 0120101962.
2 Complainant alleges that he was subjected to increased street
supervision; he was asked why it took 40 minutes for him to clock off
for the day; the manager came up behind him while he was on his route and
asked what was taking him so long; a co-worker told him that the manager
would stop the whole thing if he apologized for a comment he had made;
complainant and his supervisor disagreed about the extra time he would
need on his route and a conversation with another supervisor later in
the day about complainant running late left complainant lightheaded and
shook up; he was instructed to take all his papers and be out by a certain
time whereas others were able to cut their papers so they could make it
back in the time allowed; there was a dispute over the number of flats he
had to deliver and his supervisor entered false information on his Form
3996, which resulted in him beginning to shake and his vision blurring;
and his supervisor became very loud and stated that complainant was a
liar and a falsifier, and claimed that that he was going to make sure
he was going to get complainant.
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***Appeal number TX***
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101962; 0220090003