0120181521
05-22-2018
Abdul M,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Abdul M,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120181521
Agency No. 4G730000718
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's February 5, 2018 dismissal of 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. and Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier, PS-02, at the Post Office in Oklahoma City, Oklahoma.
On January 23, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), disability (mental, anxiety)2 and reprisal for prior protected EEO activity (EEOC Hearing No. 560201400252X) when:
1. On October 19, 2017, after reporting that he injured himself while on duty, and had to leave for treatment, his manager ("M1") spoke to him in an unprofessional manner, stating "there is nothing wrong with him," and,
2. On January 5, 2018, M1 deliberately intimidated him by bringing the responding management official ("RMO") that Complainant named in his prior EEO Complaint with her as her "representative" at mediation for the instant complaint.3
On October 19, 2017, Complainant experienced severe pain in his back, neck, and shoulders. Complainant was used to some daily pain associated with the physical requirements of his job, and felt a "pinch" between his shoulders the day before. However, the pain that day was substantially worse, as he could hardly move his head back and forth. Complainant notified M1 when he arrived to work, and M1 responded, "can you still use rear view mirrors," and Complainant said he would try. However, the pain only got worse. Complainant's coworker noticed, and loaded Complainant's truck for him. Complainant returned to M1 and said he did not think he could make the deliveries, and that he needed to seek medical attention. M1 allegedly said that "nothing was wrong" with him. Complainant alleges M1 deliberately delayed providing him with the proper paperwork for reporting his injury as well. On or around December 27, 2017, Complainant's physician recommended he undergo back surgery.
On January 5, 2018, Complainant was scheduled to engage in mediation with M1 regarding the comments she made about his injury. Prior to the relevant time frame for the instant complaint, Complainant informed M1 that he felt uncomfortable around his former supervisor, an RMO in his prior EEO complaint, which was settled on or around November 10, 2014. At the time, M1 ensured RMO was not working in the same area as Complainant. However, M1 brought RMO as her representative for mediation, which Complainant alleges was intended to intimidate him.
The Agency dismissed Complainant's complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The instant appeal followed.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). 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. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, a claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
We find that Complainant is not aggrieved by either of the claims in the complaint and he has not presented persuasive evidence that when considering both claims together, he has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment. See Cobb v. Dep't of the Treasury, Request No. 05970077 (March 13, 1997). Allegations of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (finding allegations that a supervisor "verbally attacked" the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign-in log, were insufficient to state a harassment claim); see also Banks v. Dep't of Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995) (finding allegations that on one occasion a supervisor threw a file on the complainant's desk and berated her in a loud voice in the presence of other employees insufficient to state a harassment claim). Likewise, we find the instant complaint, comprised two incidents of alleged harassment that did not result in disciplinary action, and occurred months apart from one another, fails to state a claim.
New Claims Raised on Appeal
Complainant's appellate argument includes multiple allegations that were not raised with an EEO Counselor prior to filing the instant complaint. If Complainant wishes to pursue these new harassment and retaliation claims in an EEO complaint, then he must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests.
Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 22, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant does not allege disability discrimination based on his back impairment from his on the job injury.
3 Complainant included Claim 2 in his Formal Complaint, although the Agency omitted it from its Final Decision.
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