Joseph P. Zurlo, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 2, 2003
01A34463_r (E.E.O.C. Dec. 2, 2003)

01A34463_r

12-02-2003

Joseph P. Zurlo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Joseph P. Zurlo v. United States Postal Service

01A34463

December 2, 2003

.

Joseph P. Zurlo,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A34463

Agency No. 1A-106-0019-02

DECISION

Complainant appealed to this Commission from the agency's June 27, 2003

dismissal of his employment discrimination complaint. The agency defined

complainant's complaint as alleging discrimination on the bases of race

(Caucasian) and sex (male) when:

Complainant's seniority was not honored;

Complainant was paged excessively;

Complainant was required to work near his supervisor;

The supervisor stuck her tongue out at complainant; and

Money was missing from complainant's check.

The agency dismissed the complaint for failure to state a claim,

reasoning that complainant failed to "describe generally the action(s)

or practice(s) that form the basis of the complaint," as required in 29

C.F.R. � 1614.106(c). Furthermore, the agency explained that complainant

never provided specific information, documentation, or incident dates

for his claims.

On appeal, complainant explains that the excessive paging was a daily

incident. He contends that his coworkers still joke about how he was

singled-out on the public address (PA) system. Complainant provided a copy

of his request for EEO Counseling, wherein complainant asserted that on

January 19, 2001, at 10:00 a.m., the acting supervisor announced over the

PA system, "ADC Area return back from break. [Complainant], return back to

ADC Area." When complainant "told" the acting supervisor to refrain from

singling him out, she responded by sticking-out her tongue at complainant.

Nonetheless, complainant does not explain how long these pages continued,

or if the January 19, 2001 incident was descriptive of all such incidents.

With regard to claim (1), complainant explains that he and one coworker

regularly were forced to work in a less desirable work area. Complainant

filed a grievance regarding being forced to work in this area while

employees with less seniority were allowed to stay in more desirable

work areas. The grievance settled in December 2001, but complainant

contends the agency sent him to a less desirable work location on January

10, 2002, despite the settlement.

EEOC Regulations require the dismissal of complaints that fail to

state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,

complainant must allege harm to a term, condition, or privilege of

employment on the basis of race, color, religion, sex, national origin,

age, disabling condition, or reprisal for prior protected activity.

See Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 21, 1994). Hostile work environment harassment is actionable if it

sufficiently severe or pervasive to alter the conditions of complainant's

employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

The Commission finds that claim (5) states a claim. In counseling,

complainant explained that money was missing from his paycheck in

pay period 26 of fiscal year 2001. To properly define this claim,

the agency should have considered the detailed information concerning

complainant's wages included in claim (5). Further, a claim of missed

wages clearly affects a term of complainant's employment. Therefore,

the agency's dismissal of claim (5) was improper.

The agency properly dismissed complainant's remaining claims. With regard

to claim (1), although the terms of the grievance settlement are not

included in the present complaint, it appears complainant is challenging

the agency's breach of a settlement agreement made during the grievance

process. The Commission's jurisdiction over settlements only extends to

those made during the EEO process. Cf. Judge v. United States Postal

Service, EEOC Request No. 05950186 (July 7, 1995) (challenge to matter

that was subject to a grievance settlement was a collateral attack to

the grievance process). Accordingly, the Commission lacks jurisdiction

to consider claim (1).

In claims (2) - (4), even if these matters are viewed in a light most

favorable to complainant, they are not severe or pervasive enough to

state a claim. The Commission notes that these claims are not part of

a pattern of harassment with claim (5). Claim (5) involves a concrete

action involving a time keeper and human resources officials, as opposed

to comments from his acting supervisor alleged in claims (2) - (4).

Therefore, the agency's dismissal of claims (2) - (4) was proper.

CONCLUSION

Accordingly, the agency's dismissal of claims (1) - (4) is AFFIRMED.

The agency's dismissal of claim (5), however, is REVERSED, and the claim

is REMANDED for further processing.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

December 2, 2003

__________________

Date