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

Equal Employment Opportunity Commission

Mar 7, 2013

0120121533 (E.E.O.C. Mar. 7, 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. 0120121533

Agency No. 1G-761-0012-12

DECISION

Upon review, we find that the Agency’s decision dated January 9, 2012, dismissing
Complainant’s complaint for failure to state a claim is proper pursuant to 29 C.F.R.
§1614.107(a)(1). For the following reasons, we AFFIRM the Agency’s decision.

BACKGROUND

In his complaint, filed on December 23, 2011, Complainant alleged discrimination based on
race/color (unspecified), age (over 40), and disability, when he was subjected to hostile work
environment harassment in that: (1) on November 7 and 16, 2011, a management official made
statements to him, prior to his being on the clock, including that he and another employee were
talking for 15 minutes and he was “worthless;” and (2) in the past, various incidents have
occurred, including the official making a statement about deporting him back to Mexico and on
an unspecified date, the official changed his days off and denied his request for change of
schedule (PS Form 3189) without his consent or knowledge. In its decision, the Agency
dismissed the complaint for failure to state a claim since Complainant failed to show that he
was aggrieved.

ANALYSIS AND FINDINGS

Complainant claimed that he was subjected to harassment when the official, identified in his
complaint, made remarks that he was “worthless” and about deporting him back to Mexico.
The Commission has consistently held that a remark or comment unaccompanied by concrete
action is not a direct and personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. Henry v. USPS, EEOC Request No. 05940695 (February 9, 1995).
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There is no evidence that Complainant was subjected to any adverse action as a result of the
alleged comments. Although Complainant claimed that the alleged incidents constituted
harassment, we do not find that the alleged actions were sufficiently severe or pervasive to
alter the conditions of his employment such as to state a claim of harassment. See Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997). With regard to his claims concerning his days off
and change of schedule, it appears that Complainant raised the subject matters as background
information to support his recent harassment claim against the official, discussed above.
Complainant clearly fails to provide specific incident dates of the purported actions.

Accordingly, the Agency’s 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:

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).

0120121533

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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

March 7, 2013
Date