0120103402
12-14-2010
Dan Pham, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Dan Pham,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120103402
Agency No. 4F-926-0150-10
DECISION
Upon review, we find that the Agency's decision dated July 7, 2010,
dismissing Complainant's complaint for failure to state a claim is proper
pursuant to 29 C.F.R. �1614.107(a)(1). The Agency's decision dismissing
the complaint is AFFIRMED.
BACKGROUND
In his complaint, dated June 25, 2010, Complainant, a Supervisor Customer
Services, EAS-17, at the Agency's Artesia Post Office, California, alleged
discrimination based on disability and in reprisal for prior EEO activity
when since April 1, 2010, he had been subjected to harassment when:
he was ordered to learn a scheme; his sick leave calls were recorded
and he was required to call in everyday for a long-term illness; he
was ordered to sign an action plan or be suspended; he was ordered to
finish reports or be disciplined; he was told not to call NAPS; and he
was continuously verbally harassed.
The Agency stated that Complainant did not claim any personal loss
related to a term, condition, or privilege of employment nor did he
indicate that any corrective or adverse action was taken as a result
of the alleged incidents. Furthermore, Complainant did not specify
exactly how he was verbally harassed. The Agency also stated that the
alleged incidents were common workplace occurrences and they were not
sufficiently severe or pervasive so as to state a claim of harassment.
ANALYSIS AND FINDINGS
Upon review, we find that the alleged incidents failed to state a claim.
Specifically, Complainant's manager stated that all supervisors,
including Complainant, were asked to read "the 3M Process" to ensure
that the duties and responsibilities as a supervisor were complied daily.
The manager indicated that in order to help with being able to determine
whether or not a piece of returned mail was handled correctly, a scheme
for the unit routes were required to be located on or near the 3M case.
The manager stated that all supervisors, including Complainant, were asked
to read and sign the 3M Certification Letter. Complainant refused to do
so indicating that he would not do anything without a NAPS representative.
The manager stated that he then told Complainant that he needed to follow
his instructions and then he could follow up with NAPS.
The manager indicated that all supervisors, including Complainant, were
required to learn the alleged scheme and sign the alleged action plan,
i.e., a Plan for Success, to provide them with the opportunity to succeed
in the performance of their duties. He also indicated that there were
incomplete accidents reports that needed to be entered in the EHS Program.
The manager stated that he did assign the task to Complainant to complete,
but he denied telling Complainant that he would be subjected to discipline
if he did not complete the tasks rather he was given a time line to
complete the task. The manager stated that when Complainant called in
sick, stress related, he told Complainant that he needed clarification
on the procedure to follow and asked Complainant to call him next day
so that he would have correct information for him.
It appears that the alleged incidents concern common work-related
occurrences which affected all supervisors and not only Complainant.
There is no evidence in the record to show that Complainant was subjected
to adverse action or any disciplinary action as a result of the incidents.
Furthermore, 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).
Based on the foregoing, we find that Complainant was not aggrieved with
regard to a term, condition or privilege of her employment as a result
of the alleged sitting arrangement. See Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). Also, we do not
find that the alleged incidents were sufficiently severe or pervasive
to state a claim of harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
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).
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
12/14/10
__________________
Date
2
0120103402
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013