05971053
03-04-1999
Robert L. Perry, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert L. Perry v. United States Postal Service
05971053
March 4, 1999
Robert L. Perry, )
Appellant, )
)
v. ) Request No. 05971053
) Appeal No. 01965736
William J. Henderson, ) Agency No. 1C441103096
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On September 5, 1997, appellant timely initiated a request to the
Equal Employment Opportunity Commission to reconsider the decision in
Robert L. Perry v. Marvin T. Runyon, Jr., Postmaster General, United
States Postal Service, EEOC Appeal No. 01965736 (August 7, 1997). EEOC
Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 29 C.F.R. �1614.407(a). The
party requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy,
29 C.F.R. �1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
Appellant filed a complaint in which he alleged that, because of his race
and prior EEO activity, his supervisor referred to him as a "low life"
on the workroom floor, in front of the union steward, on December 15,
1993.<1> The steward indicated that appellant was not in the work area
when the supervisor made the "low life" remark.
The agency dismissed appellant's complaint for failure to state a claim.
Allegations of a few isolated incidents of alleged harassment, or of
comments unaccompanied by concrete agency actions, are usually not
sufficient to state a claim. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). In Cobb, the Commission
found that an agency official's references to the complainant as a
"troublemaker" and a "bad union president," made at a labor-management
meeting that the complainant did not attend, was insufficient to state
a claim of discriminatory harassment. The instant case, like Cobb,
involves an isolated comment that was made outside of appellant's
presence. Appellant has not presented any argument or evidence that he
was harassed, ostracized, or subjected to any adverse agency action as
a result of the supervisor's comment. We therefore agree that the agency
correctly dismissed appellant's complaint for failure to state a claim.
After a review of appellant's request for reconsideration, the
agency's response, the previous decision, and the entire record, the
Commission finds that appellant's request does not meet the criteria
of 29 C.F.R. �1614.407(c), and it is the decision of the Commission
to deny appellant's request. The decision of the Commission in Appeal
No. 01965736 remains the Commission's final decision in this matter. There
is no further right of administrative appeal from a decision of the
Commission on a request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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.
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:
March 4, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 Appellant initially raised this allegation as a breach-of-settlement
allegation, along with several other allegations that Perry v.
United States Postal Service, EEOC Appeal No. 01944268 the Commission
ordered the agency to process the "low life" allegation as a separate
complaint under 29 C.F.R. �1614.504(c), which is how the instant
complaint arose. Appellant filed a request for reconsideration of
Appeal No. 01944268, on other grounds. That request has been given
the docket number 05970419, and is currently pending.