0120113560
12-07-2012
Cheryl A. Hill, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Cheryl A. Hill,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120113560
Agency No. 4K-280-0085-11
DECISION
On July 9, 2011, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 7, 2011, dismissing her 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.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Storekeeper at the Agency's Vehicle Maintenance Facility in Charlotte, North Carolina.
On May 27, 2011, Complainant filed a formal complaint, as amended, alleging that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when:
1. From December 2010 - February 2011, her co-worker was permitted to leave the heater off due to the noise;
2. During 2010 she was taken off the assignment to collect parts from the GMF;
3. On various dates, including February 1, 2011, her supervisor sends e-mails announcing Complainant's days off;
4. On February 17, 2011, she was instructed to complete a "waste report" prior to her assigned duties (eBuys) and a co-worker was available but not required to assist;
5. On various dates including March 3, 11, 15, and April 20, 2011, her supervisor assisted a co-worker while Complainant was on a break or lunch;
6. On March 14, 2011, her supervisor checked on a "diesel fuel fill" on her but does not do that on her co-workers;
7. On April 6, 2011, when she returned from vacation, invoices were not completed although a co-worker was paid at a higher level to fill in for her;2
8. On April 15, 2011, she was instructed to order a part a co-worker refused to order;
9. On April 22, 2011, she was instructed to order a part a co-worker refused to order; and
Whether she was discriminated against based on reprisal for the above EEO case when:
10. On May 3, 2011, she was called in for an attendance interview.
The Agency dismissed the complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1). It reasoned that Complainant was not aggrieved, and that her complaint did not rise to the level of actionable harassment. The Agency dismissed a portion of the complaint for failure to timely initiate EEO counseling. It reasoned that Complainant initiated contact with an EEO counselor on April 15, 2011, beyond the 45 calendar day time limit for incidents occurring prior to March 1, 2011. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). It also dismissed issue 10 for alleging a preliminary step to taking a personnel action. It reasoned there was no action taken as a result of the investigative interview. 29 C.F.R. � 1614.107(a)(5).
ANALYSIS AND FINDINGS
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. 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 a 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.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint 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, .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 (Apr. 21, 1994).
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra. In the case at hand
While Complainant argues on appeal that she suffered mental anguish, applying these standards we find that she has not shown that her claims rise to the level of actionable harassment or that she was aggrieved. Further, we find that issue 10, standing alone, would not reasonably likely deter EEO activity. Complainant submitted documentation of the interview signed by her and her supervisor that she was not getting an official discussion. The record does not show any action was taken as a result of the interview.3
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 7, 2012
__________________
Date
1 The Agency argues that Complainant filed her appeal on July 22, 2011, and hence it is untimely. The record shows Complainant initially timely filed her appeal on July 9, 2011, and it was returned to her because she mailed it to an outdated EEOC address. Because the Agency provided Complainant the outdated address on the second page of the Notice of Appeal/Petition, EEOC Form 573 (REV 1/01), which contained the instruction to mail the appeal to the outdated address, we find that the appeal was timely filed.
2 Complainant is a higher pay level employee than her counterparts.
3 As we have affirmed the above grounds of dismissal, we need not address the other grounds for dismissal relied upon by the Agency.
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0120113560
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113560