0120093359
01-26-2010
Stephen Zarski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephen Zarski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093359
Agency No. 1E-891-0025-09
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated June 25, 2009, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds
that complainant's complaint was properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1).
During the relevant period, complainant worked as a Mail Processing Clerk
at a Las Vegas, Nevada facility of the agency. Complainant filed a formal
EEO complaint, in narrative form, alleging that the agency discriminated
against him on the bases of race (White), national origin (unspecified),
sex (male), religion (unspecified), color (White), age (over 40), and
reprisal for prior protected EEO activity when (1) on February 20 - 21,
2009, management engaged in criminal conduct by not allowing complainant
and an ill, female coworker (C1) to leave agency property and denying
complainant 3 1/2 hours of pay after he assisted C1 while off the clock
(2) in March 2009, management designated his leave as "unscheduled" rather
than "scheduled" although complainant "called-in" before the start of his
tour, (3) on April 30, 2009, complainant did not receive his paycheck and
it was reissued on May 4, 2009, (4) management committed time card fraud,
(5) an agency Area Vice President stated "I will execute you!" and (6)
several managers stated "[A specific female supervisor] hates white
males but she is a good supervisor." Complainant also expressed concern
regarding the manner in which his EEO counseling was conducted.
In its June 25 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state
a claim. Specifically, the agency found that complainant failed to
show that he was aggrieved by the agency's actions or that the actions
rose to the level of a hostile work environment. The agency noted that
complainant should have contacted the EEO Compliance and Appeals Manager
in writing regarding dissatisfaction with the processing of his complaint
and provided applicable contact information. The instant appeal from
complainant followed, in which he reiterated prior contentions.
The Commission finds that the complaint fails to state a claim of hostile
work environment under EEOC regulations because complainant failed to
show that the actions as alleged are sufficiently severe or pervasive to
alter the conditions of his employment. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993). Further, we find that complainant failed
to show that he suffered harm or loss with respect 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 conclude that complainant did not establish improper
processing of his complaint. Based on the above, we AFFIRM the agency's
final decision dismissing complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (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 (Z1008)
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
January 26, 2010
__________________
Date
2
0120093359
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120093359