Sheryl L. Grey, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.

Equal Employment Opportunity CommissionDec 8, 2004
01a45301 (E.E.O.C. Dec. 8, 2004)

01a45301

12-08-2004

Sheryl L. Grey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.


Sheryl L. Grey v. United States Postal Service

01A45301

December 8, 2004

.

Sheryl L. Grey,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Southeast Area)

Agency.

Appeal No. 01A45301

Agency No. 4H-335-0137-04

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. In a complaint dated June 29, 2004, complainant alleged

that she was subjected to retaliation for prior EEO activity when her

supervisor called her to his office to discuss her repeated inappropriate

conversation with callers, and did so by yelling at and berating her.<1>

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

.106(a) (2004). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or

loss with respect to a term, condition, or privilege of employment for

which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Complainant is not an �aggrieved employee� within the meaning of

the EEOC Regulations. In her complaint, complainant states that

the supervisor's unsavory tone and statements created a �hostile work

environment.� Although his behavior may be seen as rude and offensive,

it does not constitute a �hostile work environment� as that concept

is understood under the EEO statutes. 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 McDaniel

v. Equal Employment Opportunity Commission, EEOC Appeal No. 01A04246

(Oct. 20, 2000) (citing Philips v. Dep't of Veterans Affairs, EEOC

Request No. 05960030 (July 12, 1996)); Banks v. Health & Human Servs.,

EEOC Request No. 05940481 (Feb. 16, 1995). Moreover, the Commission

has consistently 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. See Backo v. United States

Postal Serv., EEOC Request No. 05960227 (June 10, 1996); see also Henry

v. United States Postal Serv., EEOC Request No. 05940695 (Feb. 9, 1995).

Complainant does not show that the agency followed-up the negative

remarks with some concrete action against her that affected a term,

condition, or privilege of employment. Complainant therefore fails to

state an actionable claim.

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

December 8, 2004______________

Date

1 The record does not identify under what

statute complainant's prior protected activity arose, but the agency

does not contest that complainant engaged in prior protected activity.