0120103227
12-08-2010
Michael J. O'Day, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Michael J. O'Day,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120103227
Agency No. 4K270007310
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated June 7, 2010, 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.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to
discrimination on the basis of reprisal for prior protected EEO activity
under a statute that remains unspecified in the record when:
1. On April 13, 2010, Complainant's OIC (Officer in Charge) insulted
Complainant's integrity and accused him of doing nothing but 'talking
to people'.
The Agency dismissed the claim for failure to state a claim and
Complainant appealed. On appeal, Complainant indicates that the
alleged retaliation "is not just for this EEO case" but for other
non-EEO related matters, such as Complainant's contact with the Office
of Inspector General. Complainant further alleges additional instances
of harassment including OIC driving past him slowly in the parking lot
and OIC threatening Complainant with disciplinary action. The Agency
requests that we affirm the FAD.
ANALYSIS AND FINDINGS
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, disabling condition, or in retaliation
for engaging in the EEO process. See 29 C.F.R. �� 1614.103, .106(a).
The Commission interprets the statutory retaliation clauses "to prohibit
any adverse treatment that is based on a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity." EEOC Compliance Manual, Section 8 (Retaliation)
at 8-13, 8-14 (May 20, 1998).
Following a review of the record, the Complainant finds that Complainant
fails to state a claim of retaliation because being insulted and accused
of "talking to people," being threatened with future acts of discipline,
and having the OIC drive by slowly in a parking lot, do not constitute
actions that are reasonably likely to deter Complainant or others from
engaging in protected activity. Nor has Complainant shown that he was
subjected to unwelcome verbal or physical conduct involving his protected
class, that the harassment complained of was based on his statutorily
protected classes, and that the harassment had the purpose or effect
of unreasonably interfering with his work performance and/or creating
an intimidating, hostile, or offensive work environment. See McCleod
v. Social Security Administration, EEOC Appeal No. 01963810 (August 5,
1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, Complainant admits on appeal that the Agency's alleged
actions were in part due to non-EEO related matters. Accordingly,
we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 8, 2010
__________________
Date
2
0120103227
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120103227