Larry Devillier, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 30, 2003
01A34222_r (E.E.O.C. Oct. 30, 2003)

01A34222_r

10-30-2003

Larry Devillier, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Larry Devillier v. United States Postal Service

01A34222

October 30, 2003

.

Larry Devillier,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A34222

Agency No. 1E-801-0230-03

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated June 18, 2003, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

On December 6, 2002, complainant contacted the EEO office regarding

claims of discrimination on the bases of disability, sex, and age.

Informal efforts to resolve complainant's concerns were unsuccessful.

On March 12, 2003, complainant filed a formal complaint. In its final

decision, the agency determined that the instant complaint was comprised

of the following three claims:

1) On an unspecified date in November 2002, complainant was verbally

humiliated in front of co-workers while out on the dock when he was told

he could not wear his Vietnam cap;

On December 2, 2002, complainant was verbally humiliated in front of

co-workers when he was accused of faking his injury; and

3) On an unspecified date in January 2003, complainant received his

21St safety award approximately eight months late.

On June 18, 2003, the agency issued a final decision dismissing the

complaint for failure to state a claim.

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). 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).

Claims (1) and (2) involve unwelcome comments unaccompanied by concrete

agency's action. The allegations seem to involve verbal unpleasantries

on two occasions. The Commission has repeatedly found that remarks or

comments unaccompanied by a concrete agency action are not a direct and

personal deprivation sufficient to render an individual aggrieved for

the purposes of Title VII. See Backo v. United States Postal Service,

EEOC Request No. 05960227 (June 10, 1996); Henry v. United States

Postal Service, EEOC Request No. 05940695 (February 9, 1995). Although

complainant claimed that he was verbally humiliated, there is no evidence

in the record that complainant was issued any disciplinary action as a

result of the alleged improper remarks. Consequently, we find that the

agency properly dismissed claim (1) and (2) for failure to state a claim.

In claim (3), complainant claimed that he received his safety award late

for discriminatory reasons. The Commission determines that complainant

has not alleged a personal loss or harm regarding a term, condition,

or privilege of his employment for which there is a remedy.

Moreover, a review of the record reflects that the matter in question

is insufficient to support a claim of harassment. See Cobb v. Department

of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

Accordingly, the Commission AFFIRMS the agency's dismissal of claims (1),

(2), and (3).

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

October 30, 2003

__________________

Date