01a51516
04-12-2005
Ernest L. Hart , Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ernest L. Hart v. United States Postal Service
01A51516
April 12, 2005
.
Ernest L. Hart ,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51516
Agency No. 4H-370-0192-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 23, 2004, 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. In his
complaint, complainant alleged that he was subjected to a hostile work
environment on the bases of race (African-American) and reprisal when:
On September 29, 2004, the Supervisor interrupted complainant and a
co-worker and stared at complainant.
On October 6, 2004, the Supervisor entered the break room and instructed
complainant to shred money orders.
On November 4, 2004, complainant was told to go to another station
to work.
The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. The agency concluded
that complainant is not an aggrieved employee because he failed to
provide evidence to show that he suffered a personal loss or harm with
respect to a term, condition or privilege of employment as a result of
the Supervisor's alleged actions. Moreover, the agency concluded that
the actions complainant complained of were insufficient to equate to a
Title VII claim of hostile work environment. The agency also determined
that the issues presented in this complaint were identical to the issues
in complainant's January 17, 2003 EEO case, Agency No. 1H-375-0002-03.
Therefore, the agency dismissed the complaint for filing the same
claim that is pending before or has been decided by the agency or the
Commission.
The Commission finds that the complaint was properly dismissed for failure
to state a claim. 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). 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). Complainant did not submit
evidence to identify that any adverse action was taken against him as a
result of the September 29, October 6 and November 4, 2004, incidents
between him and the Supervisor. Moreover, the events as identified
by complainant are not sufficiently severe or pervasive as to state a
claim of discriminatory harassment. See Cobb v. Department of Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Because of our disposition in this case, we do not consider the
alternative ground for dismissal.
Accordingly, the agency's decision dismissing the complaint is AFFIRMED.
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
April 12, 2005
__________________
Date