01985441_r
09-17-1999
Bruce E. Motko, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Bruce E. Motko, )
Appellant, )
)
v. ) Appeal No. 01985441
) Agency No. 1C-441-0114-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On July 1, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 4, 1998,
pertaining to 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. In his complaint, appellant alleged that he
was subjected to harassment on the bases of race (White), sex (male),
and in reprisal for prior EEO activity when on March 1, 1998:
Appellant's supervisor (S1) went through appellant's personal property;
and
S1 twice threatened appellant's job; once to appellant and later that day
when S1 was overheard to say that she was going to �get� appellant.<1>
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for failure to state a claim. Alternatively,
the agency dismissed allegation (2) pursuant to 29 C.F.R. �1614.107(e), on
the grounds that it alleged that a proposal to take a personnel action, or
other preliminary step to taking a personnel action, was discriminatory.
Specifically, the agency determined that appellant failed to show how he
suffered harm to the terms, conditions or privileges of his employment
as a result of the incidents identified in allegations (1) and (2),
and was, therefore, not aggrieved. Alternatively, the agency concluded
that because no action was taken as a result of the threats identified
in allegation (2), it represented an allegation that a preliminary step
to taking a personnel action was discriminatory.
The record indicates that appellant alleged that his personal property
located in the cage area had been disturbed. Specifically, appellant
stated that when he returned to work on the evening of March 1, 1998,
his �personal property was lying on the floor with the top of the box
opened and other things not in the place they had previously been.� S1
denies having gone through appellant's personal property.
On appeal, appellant contends that as a result of the actions identified
in allegations (1) and (2), he was subsequently denied the opportunity
to perform duties which he previously performed, such as accessing the
computer to make changes and updates for the unit.
In response, the agency asserts that appellant's allegations on appeal
concerning curtailment of duties should not be considered within the
context of the instant complaint, but instead brought to the attention
of an EEO Counselor for processing as a new complaint.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. 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. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Appellant alleged that he was subjected to harassment which created
a hostile work environment. 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).
However, it is well-settled that, unless the conduct is very severe,
a single incident or a group of isolated incidents will not be regarded
as creating a discriminatory work environment. See James v. Department
of Health and Human Services, EEOC Request No. 05940327 (September 20,
1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982).
In the instant complaint, we find that appellant failed to show that he
suffered harm with respect to the terms, conditions or privileges of his
employment as a result of the incidents identified in allegations (1)
and (2). Therefore, standing alone, those allegations fail to state
a claim. Additionally, even when viewed within the context of each
other and in a light most favorable to appellant, allegations (1) and
(2) are too isolated and insufficiently severe to establish a hostile
work environment. Consequently, allegations (1) and (2) were properly
dismissed pursuant to 29 C.F.R. �1614.107(a), for failure to state
a claim.<2>
We note that on appeal, appellant argues that he was denied the
opportunity to perform duties that were previously performed by him.
This matter was not the subject of the instant complaint. Appellant is
advised that if he wishes to pursue, through the EEO process, this
allegation he raised for the first time on appeal, he shall initiate
contact with an EEO Counselor within 15 days after he receives this
decision. The Commission advises the agency that if appellant seeks EEO
counseling regarding the new allegation within the above 15-day period,
the date appellant filed the appeal statement in which he raised these
allegations with the agency shall be deemed to be the date of the initial
EEO contact, unless he previously contacted a counselor regarding these
matters, in which case the earlier date would serve as the EEO Counselor
contact date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC
Request No. 05970201 (January 16, 1998).
Accordingly, the agency's decision to dismiss allegations (1) and (2)
is AFFIRMED for the reasons set forth herein.
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 (S0993)
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:
Sept. 17, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The Commission notes that the agency
identified appellant's complaint as a single allegation comprised
of two parts. To better clarify the matter, the Commission has
identified two, distinct allegations.
2The Commission distinguishes the instant case from Jackson v. Department
of the Air Force, EEOC Request No. 05960524 (April 24, 1997). In Jackson,
appellant alleged that the five incidents of alleged harassment identified
in his complaint were part of a continuing pattern of harassment against
him. By contrast, in this case, appellant made no such allegations.