0120122304
10-10-2012
Richard A. Bonner, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Richard A. Bonner,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120122304
Agency No. 1C-451-0010-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 4, 2012, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Columbus Processing and Distribution Center in Columbus, Ohio.
On March 1, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), disability ("FMLA-covered"), age (49), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On November 21, 2011, Complainant's supervisor wrongly accused him of placing a tub of mail on the floor, called him lazy and a "piece of shit"; and
2. On December 28, 2011, Complainant's supervisor came into Complainant's workspace "while she was in an unofficial capacity, with a male accomplice, unescorted in the facility," and used obscene words and threats against Complainant.
The record shows that on November 21, 2011, Complainant's supervisor approached Complainant and stated that someone made a complaint against Complainant because he put a tub of mail on the floor instead of placing it in the appropriate container. Complainant told the supervisor that the person complaining was a liar and that Complainant warned the co-worker not to put a tub on the floor, but the co-worker ignored the warning and walked away. The supervisor told Complainant that she trusted the person who made the complaint more than she would ever believe Complainant. She then accused Complainant of leaving the bin on the floor. Complainant states that the supervisor then told Complainant "You are always standing around doing nothing, so don't get me started, because I am not in the mood for it." Complainant then responded "That does not surprise me, but next time, get your facts straight." According to Complainant's statement, the Supervisor then called him "A piece of shit" and he told her to say that in front of witnesses. She told him that on her last day that she was "going to tell [him], in front of the rest of the unit, how much of a piece of shit you are".
On December 28, 2011, according to Complainant's affidavit, Complainant's supervisor walked up to Complainant on her last day of employment. The supervisor told Complainant:
"I just want to let you know this is my last day in government. I'm not going to be able to ride your ass anymore. I still think you are a piece of shit, you're the worst employee I've ever had. I just hope you get yours someday."
These comments were witnessed by two other crew members. One witness said that the supervisor actually said that Complainant was "the worst employee she had ever seen" and then added "I hope you get what you deserve someday."
There is no allegation that the remarks were accompanied by any disciplinary or adverse action taken by management. At the time of the parting words, the supervisor was off the clock. She was accompanied by another person, who was not an employee of the Agency.
After the incident, the Agency permitted Complainant to leave the premises, and management paid Complainant for the full eight hours. The record also indicates that management met with Complainant's new supervisor to underscore the need for civility in the workplace.
The Agency dismissed the appeal, reasoning that Complainant was not aggrieved by any action of the Agency and that the comments were isolated incidents that were not sufficient to show harassment. In addition, the Agency concluded that, because the supervisor had since retired, there was no reasonable expectation that the alleged acts will recur.
Neither party filed a brief on appeal.
ANALYSIS AND FINDINGS
The regulation 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. In addition, 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
First, we find that the complaint fails to state a claim because Complainant failed to allege that he suffered harm or damages that were incurred because of an adverse action by the Agency.
Further, there is no evidence in the record which would support an allegation that the Agency subjected Complainant to any disparate treatment that was related to his sex, age, disability or prior EEO activity. The gist of this complaint is that management did not provide him with an environment free of hostility from his supervisor.
Further, even assuming his two allegations are true, we find that the two incidents of comments, unaccompanied by actions, are not sufficient to state a claim in this case. In reaching this conclusion, we considered the entirety of Complainant's allegations. Complainant conceded that he has had prior confrontations with other supervisors and co-workers. The supervisor was clearly expressly her personal opinion on her last day of employment, which reflected what she had been told (that Complainant left a bin on the floor) and her own displeasure with Complainant as an employee. While the Commission does not condone such expressions of displeasure, the alleged comments alone do not state a claim of discrimination.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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
October 10, 2012
__________________
Date
2
0120122304
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122304