0120132777
04-11-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120132777
Agency No. 4G770010713
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Decision) dated June 24, 2013, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Roy Royall Station facility in Houston, Texas.
On May 31, 2013, Complainant filed a formal EEO complaint alleging that that she was being subjected to retaliatory harassment by an Acting Manager. Complainant alleged that she had previously filed a harassment charge against the Acting Manager and he was now retaliating against her. Complainant provided the following two incidents in support of her claim of harassment:
1) On February 20, 2013, the Acting Manager called her into the office and orally reprimanded her for playing music too loud at her work station; and
2) On February 21, 2013, she was given an investigative interview for allegedly violating the Agency's dress code.1
The Agency issued a decision dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
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. With regard to claims of retaliation, such as the present case, we note that the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). Thus, not all claims of retaliatory harassment are actionable.
Following a review of the record, and based on the specific facts herein, we find that Complainant fails to state a viable claim of harassment/hostile work environment. The two incidents cited by Complainant, even if proven true and considered together, are not sufficiently severe or pervasive to alter the conditions of her employment. We note that there is no allegation that Complainant was ever subjected to any disciplinary action or other negative personnel action as a result of these incidents. Moreover, we cannot find that these incidents, as alleged, were reasonably likely to deter Complainant or others from engaging in protected activity.
We also find that Complainant has not provided any information about her earlier claim of alleged harassment by the Acting Manager. Moreover, while she indicates that he was transferred away from her work location for a time, she has not provided any information on how long ago the original harassment and purported transfer occurred.
We note that the Commission has previously found that the return of a previously transferred harasser is itself sufficient to state a claim of harassment. See, Juergensen v. Dep't. of Commerce, EEOC Appeal No. 0120073331 (Oct. 5, 2007), request to reconsider denied, EEOC Request No. 0520080128 (Dec. 19, 2007) (EEOC reversed a dismissal for failure to state a claim where the agency rehired a former employee who management knew had engaged in racial harassment when previously employed in the same office); see also, Battles v. U.S. Postal Service, EEOC Appeal No. 0120131822 (June 26, 2013) (reversing the agency's dismissal of complainant's complaint of harassment when the offending co-worker was returned to the same workplace where she created a racially charged environment); Complainant v. U.S. Postal Service, EEOC Appeal No. 0120140447 (March 6, 2014) (reversal of agency's dismissal of complainant's complaint of harassment when the offending co-worker was returned to the same workplace where he had recently allegedly engaged in severe harassment against the same complainant). In each of those cases, however, we note that the Commission's finding was based in part on the fact that the details of the original, pre-transfer, acts of harassment were present in the record, and further, such pre-transfer acts were sufficiently severe and/or pervasive to state valid claims of harassment on their own, even absent the return of the harasser. In addition, the fact that the harasser was only gone for a short period was a contributing factor in finding that the complainants in those cases stated a claim. The instant case, however, may be distinguished from such cases by the fact that Complainant has provided no information detailing the severity or pervasiveness of the original harassment, or how long ago it occurred and how long the Acting Manager had been transferred away before returning. Without such information, we are unable to find that Complainant states a valid claim.
The Agency's dismissal decision 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
April 11, 2014
__________________
Date
1 We find that the Agency characterized the claim slightly differently in its dismissal decision. However, we find that a fair reading of the complaint and EEO counseling report shows that Complainant's claim is more properly characterized as above.
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0120132777
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120132777