0120110195
02-17-2011
Charles Widmer, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Charles Widmer,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120110195
Agency No. 1G-721-0017-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 30, 2010, dismissing his complaint of unlawful employment discrimination. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Complainant filed a complaint dated August 20, 2010, alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity when: on January 28, 2010, and June 1, 2010, Complainant reported two incidents of harassment, but the incidents were not investigated by management.
The record reveals that on January 28, 2010, Complainant sent an electronic mail message to management alleging that Person A "scolded" him during a meeting for sending an electronic mail message about relocations and "started cussing" at the meeting. January 28, 2010 electronic mail message.
The record reveals that on June 1, 2010, Complainant sent an electronic mail message to management stating that Person B came to his office to discuss a memorandum he prepared and twisted everything in the memorandum and was uncooperative with any of Complainant's responses. June 1, 2010 electronic mail message.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted Complainant did not contact an EEO Counselor until July 1, 2010, which it stated was 154 days after he alleged he first notified management of harassment and thus, beyond the applicable limitations period. Additionally, the Agency stated Complainant's complaint should be dismissed pursuant to 29 C.F.R. �1614.107(a)(1), for failure to state a claim.
ANALYSIS AND FINDINGS
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). 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Upon review, we find Complainant's complaint was properly dismissed for failure to state a claim. Specifically, we note the incidents alleged were not sufficiently severe or pervasive to constitute harassment. Moreover, we find Complainant failed to show that he suffered a harm or loss to a term, condition, or privilege of employment for which there is a remedy. Furthermore, we find the action alleged was not reasonably likely to deter Complainant or others from engaging in protected activity. Finally, we note Complainant did not allege that the two incidents he reported to management as occurring on January 28, 2010, and June 1, 2010, constituted discrimination.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
February 17, 2011
__________________
Date
2
01-2011-0195
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120110195