Scott A. Eades, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01A33290_r (E.E.O.C. Oct. 27, 2003)

01A33290_r

10-27-2003

Scott A. Eades, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Scott A. Eades v. United States Postal Service

01A33290

October 27, 2003

.

Scott A. Eades,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A33290

Agency No. 4G-752-0116-03

DECISION

Complainant filed an appeal with this Commission from an April

16, 2003 agency decision, dismissing his complaint, pursuant to 29

C.F.R. � 1614.107(a)(1) for failure to state a claim. In his complaint,

complainant alleged that he was subjected to discrimination on the bases

of race sex, and reprisal for prior EEO activity when on November 5,

2002, and continuing, the following occurred:

1. Supervisor A was making comments and ignoring his request to ask a

question during a meeting or even to acknowledge complainant;

2. Supervisor A wrote a driver observation on November 5, 2002, stating

that complainant was too close to a fire hydrant;

3. Complainant gave his request for auxiliary assistance to Supervisor

A who remarked on November 27, 2003, �[y]ou never cease to amaze me;�

4. After returning from his street route on December 4, 2002,

complainant's route was loaded with mail;

5. Complainant was instructed on December 6, 2002, to let the auxiliary

helper pull down his own help slip;

6. Second class mail was �cased� on complainant's route on December

13, 2002;

7. Complainant was told to submit an absence form (3971) on December 16,

2002, because he was late; and

8. When complainant �clocked in� and approached his route on December

18, 2002, someone was �casing� complainant's mail.

In dismissing the complaint, the agency stated that complainant was not

aggrieved because he failed to show that he suffered a personal loss or

harm with respect to a term, condition, or privilege of his employment.

The agency also noted that complainant was unable to show how the alleged

actions of management resulted in any adverse action.

As an initial matter, we find that the agency failed to define the

complaint as one of harassment. The complaint and the EEO Counselor's

Report reveal that complainant is claiming that he is being subjected

to harassment based on the incidents that he described. In Harris

v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court found

that harassment is actionable, even absent a claim that any agency's

action harmed complainant in a specific term, condition, or privilege

of employment, as long as the complainant can otherwise demonstrate

that the conduct was engaged in with the purpose of creating a hostile

work environment, and also that the conduct is sufficiently severe or

pervasive as to alter the conditions of the complainant's employment.

Considering all of the alleged harassing incidents, we find that

complainant fails to state a claim of harassment. The incidents described

are not sufficiently severe or pervasive to constitute a harassment claim.

Accordingly, the agency's dismissal of the complaint, as defined herein,

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

October 27, 2003

__________________

Date