01984703_r
06-28-1999
Terrence B. Connell, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Terrence B. Connell, )
Appellant, )
)
v. ) Appeal No. 01984703
) Agency No. 4B-020-0042-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On June 4, 1998, appellant filed a timely appeal of an April 27, 1998
final agency decision, received by him on May 7, 1998, which dismissed
four of six allegations of his complaint for failure to state a claim
pursuant to 29 C.F.R. 1614.107(a).
In its final agency decision, the agency identified the allegations
of appellant's March 22, 1998 complaint as whether appellant was
discriminated against on the bases of his disability, sex, and in
reprisal when: 1) on November 10, 1997, he was denied the opportunity to
work holiday overtime; 2) on November 14, 1997, appellant was denied the
opportunity to work one hour pre-tour overtime; 3) on an unspecified date,
the Labor Relations Specialist intentionally delayed the settlement
process in his complaint in Agency No. 4B-020-1135-96; 4) on March
26, 1997, [Supervisor A] provided false testimony in her affidavit in
appellant's complaint in Agency No. 4B-020-1135-96; 5) on unspecified
dates, Supervisor A made sarcastic remarks about appellant's cats, clock
rings and days off; and 6) on February 4, 1998, Supervisor A summoned
her husband to the Post Office and Supervisor A's husband made several
comments about a private investigator. The agency accepted allegations
1 and 2 and dismissed allegations 3 to 6.
Upon review, the Commission finds that the agency's dismissal was proper.
Allegations 3 and 4 are allegations of improper processing of other
complaints and, as such, fail to state a claim. The Commission has held
that allegations of improper processing and improper investigation of a
complaint are not processable as separate and independent allegations
of discrimination. Kleinman v. U.S. Postal Service, EEOC Request
No. 05940579 (September 22, 1994); Story v. U.S. Postal Service, EEOC
Appeal No. 01965883 (March 13, 1997); Wilson v. Department of the Navy,
EEOC 01953546 (October 10, 1995)(claim of false testimony provided in
EEO investigation does not state a separate claim). Such allegations
must be addressed during the processing of the underlying complaint.
Any remedial relief to which appellant would be entitled would necessarily
involve the processing of the underlying complaints. Allegations 5
and 6 involve remarks and comments and appellant has not shown how he
was harmed thereby. The Commission has held that a remark or comment
unaccompanied by concrete action is not a direct and personal deprivation
sufficient to render an individual aggrieved for purposes of Title VII.
See Simon v. U.S. Postal Service, EEOC Request No. 05900866 (October
3, 1990).
To the extent that appellant is alleging that he was subjected
to a hostile work environment by the agency's alleged actions in
allegations 5 and 6, the Commission finds that even when allegations
5 and 6 are considered in conjunction with the accepted allegations,
the allegations fail to state a claim of a hostile work environment.
The actions complained of are not sufficiently severe or pervasive to
alter the conditions of appellant's employment. See Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Consistent with our discussion herein, the agency's final decision
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 28, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations