0120110484
09-05-2012
Charles B. Maxwell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, Agency.
Charles B. Maxwell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120110484
Agency No. 4G-752-0349-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 26, 2010, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967, 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 Postmaster at the Agency's work facility in Kilgore, Texas. On October 4, 2010, Complainant filed a formal complaint wherein he claimed that the Agency subjected him to harassment on the bases of his race (Caucasian), sex (male), disability (unspecified), age (54), and in reprisal for his prior protected EEO activity when on July 1, 2010, Complainant's Manager telephoned Complainant about his medical documentation, stating "the gig is up," and subsequently after submitting medical documentation, Complainant received written notice he was being charged leave without pay.
The Agency dismissed the complaint for failure to state a claim. The Agency stated that despite the fact it sent two letters to Complainant stating that he was being placed in a leave without pay status, Complainant was not actually charged leave without pay and since July 1, 2010, all of Complainant's time off has been paid leave. The Agency stated that Complainant failed to show that he was harmed by an action that affected a term, condition, or privilege of his employment. The Agency further determined that the actions complained of, if in fact true, were neither sufficiently severe nor pervasive to create a hostile work environment.
On appeal, Complainant contends that he was absent from work due to a legitimate and serious illness. Complainant maintains that he provided the Agency with proper medical documentation to support his absence. According to Complainant, his recovery was impeded by the Agency's abusive and offensive demand for additional and unnecessary documents. Complainant states that his supervisor does not deny telling him "the gig is up" and that this remark had a damaging effect on his health. Complainant further claims that he was not paid for three days, one day in February 2010 and two days in March 2010.
In response, the Agency asserts that Complainant was not charged leave without pay. The Agency notes that Complainant referred on appeal to not being paid in March 2010, but the Agency states that time period is outside the scope of the instant complaint, as the date of discrimination was identified as July 1, 2010.
ANALYSIS AND FINDINGS
The Commission finds that the complaint fails to state a claim under the EEOC regulations because 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Complainant has not refuted the Agency's position that he was not actually placed on leave without pay during the relevant period commencing on July 1, 2010. Moreover, the alleged statement by Complainant's supervisor and the written notice indicating that he would be placed on leave without pay were not of sufficient severity or pervasiveness to be actionable. Finally, Complainant's reference to not being paid for three days in February and March 2010 is outside the scope of this appeal given that the instant complaint pertains to events that occurred in July 2010.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
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 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), 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
September 5, 2012
__________________
Date
2
0120110484
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110484