Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

May 22, 2013

0120122059 (E.E.O.C. May. 22, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.

Appeal No. 0120122059

Agency No. 1G-753-0006-12

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated
March 5, 2012, dismissing his complaint of unlawful employment discrimination in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Distribution Clerk
at the Main Post Office in Dallas, Texas. On February 2, 2012, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on the bases of sex (male)
and in reprisal for prior protected EEO activity when, on November 21, 2011, his supervisor
spoke to him unprofessionally, including using profanity and obscene language.

On March 5, 2012, the Agency issued a final decision dismissing the complaint pursuant to 29
C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency acknowledged that
Complainant may have been offended by his supervisor’s alleged profanity; however, the
Agency concluded that it was an isolated incident and was not sufficiently severe or pervasive
to state a claim of actionable harassment. As a result, the Agency dismissed the complaint for
failure to state a claim.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that he has suffered harm as he has lost confidence in
knowing that he works in a safe work environment. Complainant argues that the Agency has
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violated its own Zero Tolerance Policy. Accordingly, Complainant requests that the
Commission reverse the Agency’s dismissal.

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. In determining whether a
harassment complaint states a claim in cases where a complainant had not alleged disparate
treatment regarding a specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims, when considered together
and assumed to be true, were sufficient to state a hostile or abusive work environment claim.
See Estate of Routson v. Nat’l Aeronautics and Space Admin., EEOC Request No. 05970388
(February 26, 1999).

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. Dept. of Veterans
Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Servs.,
EEOC Request No. 05940481 (Feb. 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. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996);
Henry v. U.S. Postal Serv., EEOC Request No.05940695 (Feb. 9, 1995).

In the complaint at hand, Complainant alleged that he was subjected to harassment when his
supervisor became angry at him and unprofessionally used profanity toward him. The
Commission agrees with Complainant that the use of profanity in the workplace is not
professional. However, the Commission finds that the incident raised by Complainant is not so
severe or pervasive enough to create a discriminatory hostile or abusive working environment.
Further, the Commission finds that the alleged incident would not reasonably deter protected
EEO activity. Accordingly, the Agency's final decision dismissing Complainant's complaint 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:

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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 (Nov. 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
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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

May 22, 2013
Date