01a32749_r
08-21-2003
David T. Aroll, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David T. Aroll v. United States Postal Service
01A32749
August 21, 2003
.
David T. Aroll,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32749
Agency No. 1A-077-0015-02
DECISION
Upon review, the Commission finds that the agency's decision dated March
10, 2003, dismissing complainant's complaint for failure to state a claim
is proper pursuant to 29 C.F.R. � 1614.107(a)(1). In his complaint,
complainant alleged that he was subjected a hostile work environment when
on February 4, 2002, a managerial official stopped by his case while
he was pitching mail and ripped a piece of mail from his hands, looked
at it, turned it over, and put it back into his hands. After a review
of the record, the Commission does not find that the alleged action was
sufficiently severe or pervasive to alter the conditions of his employment
such as to state a claim of harassment and a hostile work environment.
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).
In his complaint, complainant also alleged that from September 1997
through February 4, 2002, he was subjected to harassment and a hostile
work environment. As background information, complainant indicated
that the same managerial official made verbal threats in the past.
However, 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).
There is no evidence in the record to show that complainant was actually
subjected to any adverse action or disciplinary action.
Complainant also mentioned that his time card was missing from time
to time and he had trouble getting leave approved. However, the
Commission finds that there is no evidence in the record to show that
he had sustained any harm as a result of his purported missing time
card and that his leave request was actually made and was denied.
Complainant also mentioned in his complaint that the managerial
official failed to show up for a redress meeting involving complainant's
previous EEO complaint. However, the Commission finds that the subject
matter concerns complainant's dissatisfaction with the processing of
his previously filed EEO complaint. See 29 C.F.R. � 1614.107(a)(8).
It is noted that complainant also mentioned the matters concerning his
workers' compensation claim which is beyond the scope of the regulations.
After a review of the record, the Commission does not find that the
alleged actions were sufficiently severe or pervasive to alter the
conditions of complainant's employment such as to state a claim of a
hostile work environment.
Accordingly, the agency's decision is hereby AFFIRMED.<1>
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
August 21, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Although the agency dismissed the complaint on the alternative grounds
due to untimely EEO Counselor contact, we need not discuss such in this
decision since the dismissal is affirmed for failure to state a claim.