0120082655
12-03-2008
Jan M. Jasmin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jan M. Jasmin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082655
Agency No. 1A-108-0001-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated April 25, 2008, 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 the instant formal complaint, filed on March 10, 2008, complainant
alleged that he was subjected to discrimination on the basis of reprisal
for prior EEO activity when:
1. on or about October 15, 2007, he was requested to submit additional
acceptable medical documentation to substantiate his absence;
2. on October 25, 2007, he was issued a Letter of Warning;
3. on November 14, 2007, he was subjected to harassment regarding his
use of the restroom; and
4. on or about November 17, 2007, he was not permitted to see a union
steward.
On March 28, 2008, the agency issued a partial dismissal. The agency
accepted claim 2 for investigation. The agency dismissed claims 1, 3 and
4 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
On April 25, 2008, however, the agency issued a document titled
"Dismissal of Formal EEO Complaint." Therein, the agency stated that
the instant final decision replaced the March 28, 2008 partial dismissal.
The agency dismissed complainant's complaint for failure to state a claim.
Specifically, the agency determined that complainant failed to demonstrate
that he suffered harm to a term, condition or privilege of his employment.
Regarding claim 2, the agency indicated that complainant filed a grievance
on the matter and as settlement of the issue, the Letter of Warning (LOW)
was reduced to an official discussion. Regarding claim 3, the agency
noted that unless the conduct is severe, a single incident or group
of isolated incidents will not be considered discriminatory harassment.
Regarding claim 4, the agency stated that the alleged incident constituted
a collateral attack on the negotiated grievance process.
The Commission determines that the matters raised in claims 1, 3 and 4 do
not address a personal loss or harm to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). Further, we
find that the alleged agency actions were not of a type reasonably deter
complainant or others from engaging in protected activity. Moreover,
we find that the above referenced dismissed claims, even if proven to
be true and viewed in a light most favorable to complainant, would not
indicate that complainant has been subjected to harassment that was
sufficiently severe or pervasive to alter the conditions of employment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
We further find that claim 2 is properly dismissed for failure to state
a claim. We observe that the LOW issued on October 25, 2007 was reduced
to an official discussion on November 30, 2007 after complainant filed
a grievance. We find nothing shows that complainant suffered any injury
during the weeks the LOW remained in force. We find the agency properly
dismissed claim 2 for failure to state a claim.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
December 3, 2008
Date
2
0120082655
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120082655