Brent E. Gray, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 15, 1999
01990849 (E.E.O.C. Sep. 15, 1999)

01990849

09-15-1999

Brent E. Gray, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Brent E. Gray v. United States Postal Service

01990849

September 15, 1999

Brent E. Gray, )

Appellant, )

) Appeal No. 01990849

v. ) Agency No. 4-C-450-0068-98

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision (FAD) 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. (Title VII), and �501

of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et

seq. (Rehabilitation Act) The appeal is accepted in accordance with

EEOC Order No. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

allegations (1)-(3) and (5) for failure to state a claim.

BACKGROUND

Appellant filed a formal complaint on August 28, 1998, alleging

discrimination on the bases of race (African American) and physical

disability (feet) in that his station manager created a hostile work

environment. His complaint detailed five incidents on March 10, 1998,

in support of his claim:

1) station manager told him that he was sitting in a bad place for lunch;

2) station manager yelled "Get off my workroom floor" to appellant;

3) management accused appellant of reading other people's mail;

4) appellant's request for union representation was not honored and

5) appellant was advised by management not to touch any flats whatsoever.

In its FAD, the agency characterized the incidents as separate allegations

of discrimination. It accepted allegation (4) for processing and

dismissed allegations (1)-(3) and (5) in which it found that appellant

was not aggrieved. Therefore, the agency dismissed those allegations

pursuant to 29 C.F.R. �1614.107(a) for failure to state a claim.

This appeal followed.

On appeal, appellant argues that he was aggrieved with regards to

allegation (3) because he was issued a seven-day suspension for the

incident described therein. The agency did not deny that appellant

received disciplinary action but contends that this was not raised in

the complaint.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal of

a complaint or portion thereof which fails to state a claim within the

meaning of 29 C.F.R. �1614.103. An agency shall accept a complaint from

any 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; �1614.106(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. Riden v. Department of the

Treasury, EEOC Request No. 05970314 (October 2, 1998).

In the case at hand, appellant does not claim, and there is no evidence

that he was subjected to any disciplinary action or received suspension

regarding allegations (1), (2), and (5). Further, the Commission has

held that a remark or comment unaccompanied by concrete action is not

a direct and personal deprivation sufficient to render an individual

aggrieved for purposes of Title VII. See Simon v. United States Postal

Services, EEOC Request No. 05900866 (October 3, 1990).

However, with regard to allegation (3), appellant has shown that he

received disciplinary action in the form of a seven-day suspension.

The agency does not deny that appellant received the suspension.

The suspension clearly states that management issued the suspension

after the incident described in allegation (3). Therefore, the agency

improperly dismissed allegation (3) for failure to state a claim.

In appellant's complaint, he asserted that the actions cited constituted

harassment. In order to constitute a violation of Title VII and the

Rehabilitation Act, the conduct must be "so objectively offensive as

to alter the conditions of the victim's employment." See Enforcement

Guidance: Vicarious Employer Liability for Unlawful Harassment by

Supervisors, EEOC Notice No.915.002 (June 18, 1999) (citing Oncale

v. Sundowner Offshore Services, Inc., 118 S. Ct. 998, 1002 (1998)).

Therefore, we find that even viewing the totality of appellant's

complaint, the actions described therein are not sufficient to state a

harassment claim.

CONCLUSION

For the foregoing reasons, we AFFIRM in part the final agency decision

with regard to allegations (1), (2), and (5) and REVERSE in part the

final agency decision with regard to allegation (3) and REMAND this case

for further procession consistent with this decision and order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations 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 (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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 your appeal with the

Commission, until such time as the agency issues its final decision

on your complaint. 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 (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:

Sept. 15, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations