01972141
01-20-1999
Aaron I. Brenner, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Aaron I. Brenner v. United States Postal Service
01972141
January 20, 1999
Aaron I. Brenner, )
Appellant, )
)
v. ) Appeal No. 01972141
) Agency No. 4C-175-1069-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The final agency decision was
issued on December 11, 1996. The appeal was postmarked January 10, 1997.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed allegations
1, 2, 4, and 6 of appellant's complaint on the grounds of failure to
state a claim.
BACKGROUND
Appellant initiated contact with an EEO Counselor on June 14, 1996.
On October 4, 1996, appellant filed a formal EEO complaint wherein
he alleged that he had been discriminated against on the bases of his
religion (Jewish) and mental disability (emotional distress and perceived
mental disability) when:
1) On May 30, 1996, the Manager of Customer Services kept screaming at
him in front of his Acting Manager;
2) On June 5, 1996, the Postmaster told him that he could either quit
or be fired;
3) On June 7, 1996, the Postmaster told him that he would not receive
his merit increase because he missed work due to stress;
4) On June 7, 1996, the Manager of Customer Services used the term
"bullshit" to refer to the reason why appellant thought he should receive
a merit increase;
5) On June 10, 1996, he received a Letter of Warning for Conduct
Unbecoming a Postal Supervisor;
6) On June 11, 1996, the Manager of Customer Services called him a
"f---ing nut";
7) On June 13, 1996, the Manager of Customer Services gave him a second
Letter of Warning for Insubordination;
8) On July 11, 1996, the current Acting Manager of Customer Services
gave him a Letter of Warning for Failure to Follow Instructions;
Appellant characterized the agency's treatment of him as harassment.
In its final decision, the agency dismissed allegations 1, 2, 4, and
6 of appellant's complaint on the grounds of failure to state a claim.
The agency determined that appellant failed to establish that he suffered
a personal loss or harm with respect to a term, condition, or privilege
of his employment. According to the agency, the alleged comments made
to appellant in the dismissed allegations were not accompanied by a
concrete effort to cause appellant direct and personal deprivation.
Allegations 3, 5, 7, and 8 were accepted for investigation.
On appeal, appellant contends that the alleged incidents constitute
harassment. Appellant notes that as relief, he requested in his formal
complaint that he stop being harassed. Further, appellant states that
in his complaint he claimed that he has been unjustly criticized and
constantly ridiculed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.
For employees and applicants for employment, EEOC Regulation 29
C.F.R. �1614.103 provides that individual and class complaints of
employment discrimination prohibited by Title VII (discrimination on
the bases of race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is at
least 40 years of age) and the Rehabilitation Act (discrimination on the
basis of disability) shall be processed in accordance with Part 1614 of
the EEOC Regulations. To establish standing as an "aggrieved employee"
within the context of 29 C.F.R. �1614.103, appellant must allege, first
of all, that he has been injured in fact. Hackett v. McGuire Bros.,
445 F.2d 447 (3rd Cir. 1971). Specifically, appellant must allege some
direct harm which affects a term, condition, or privilege of employment.
See Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972).
The only proper questions in determining whether an allegation is within
the purview of the EEO process are whether the complainant is an aggrieved
employee and whether he has alleged employment discrimination covered by
the EEO statutes. An employee is "aggrieved" if he has suffered direct
and personal deprivation at the hands of the employer. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment" is created when "a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition, or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
In the present case, appellant alleges that he was subjected to
harassment when he was screamed at in front of his Acting Manager; he
was told that he could either quit or be fired; the term "bullshit" was
used to refer to the reason why he thought he should receive a merit
increase; he was called a "f---ing nut"; he received three Letters of
Warning; and he was informed that he would not receive a merit increase
because he missed work due to stress. We note that all the identified
incidents occurred over a span of two months and were all perpetrated by
appellant's superiors. Viewing the identified remarks and comments in
the light most favorable to appellant, we find that appellant has stated
a cognizable claim under the EEOC Regulations. See Cervantes v. United
States Postal Service, EEOC Request No. 05930303 (November 12, 1993).
Accordingly, the agency's decision to dismiss allegations 1, 2, 4, and
6 of appellant's complaint for failure to state a claim was improper
and is REVERSED. Allegations 1, 2, 4, and 6 are hereby REMANDED for
further processing in accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations (Allegations
1, 2, 4 and 6) in accordance with 29 C.F.R. �1614.108. The agency shall
acknowledge to the appellant that it has received the remanded complaint
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to appellant a copy of the investigative file
and also shall notify appellant of the appropriate rights within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the appellant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such 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. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
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:
Jan. 20, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations