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.