Aaron I. Brenner, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 20, 1999
01972141 (E.E.O.C. Jan. 20, 1999)

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