0120091475
07-02-2009
Denise J. Raipe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Denise J. Raipe,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091475
Agency No. 1G-772-0001-09
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 5, 2009, 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.
At the time of her complaint, complainant was a general clerk, PS-06,
working in an office environment. In her complaint, complainant alleged
that she was subjected to discrimination on the basis of reprisal for
prior protected EEO activity when on the night or early morning of
September 10--11, 2008, the manager of distribution operations (MDO)
berated her in a loud and demeaning manner, first in a separate room
and then at her desk in front of others. According to complainant,
the MDO asked if she had a bid, and when she replied yes but it was
pending training, he asked for the date she was going on the bid, and
she replied she had no date because she had to go to training first.
Complainant contended that with a loss of temper the MDO gave her
a direct order to call training when she got home, and when she
did not reply because this involved working off the clock, the MDO
demanded several times to know if she was refusing a direct order.
According to complainant, when she finally asked him if she was going
to get paid, the MDO demanded she make the call before 6 AM, and she
immediately made the call. Complainant contends that during the call,
the MDO demanded she hand the telephone to him and he starting yelling
at the training person to set up the training right away. The MDO then
allegedly repeatedly yelled at complainant "you are going to that bid."
He also allegedly questioned her about a break; and told her not to
accept documentation, and that was not part of her job. According to
complainant, her supervisor felt this was a basic function of her job,
as did complainant.1 Complainant's second allegation in her complaint was
that the MDO prevented her from being promoted to a level 7 position.
The FAD dismissed claim 1 for failure to state a claim. 29 C.F.R. �
1614.107(a)(1). It reasoned that complainant was not aggrieved, that the
matters did not rise to the level of harassment, and they would unlikely
reasonably deter EEO activity. The FAD dismissed claim 2 on the grounds
that it was not like or related to a matter that had been brought to the
attention of an EEO counselor. 29 C.F.R. � 1614.107(a)(2). It advised
complainant to contact an EEO counselor, and stated the date of contact
would be December 16, 2008, the date she filed her complaint.
On appeal, complainant argues that claim 1 states a claim. She argues
that she had previous negative interactions with the MDO, and he crossed
the line on the night or morning of September 10--11, 2008. She contends
that the agency has been retaliating against her since she filed an EEO
case in 2001 against the former plant manager. Complainant concedes
that she did not raise claim 2 about the denial of promotion prior to
filing her complaint, but contends she was unaware of it at the time.
She submits a letter to her dated September 26, 2008, notifying her
that she did not get the promotion to data collection technician level
PS-07, for which she applied. Complainant contacted an EEO counselor
on October 20, 2008. Complainant alleged in her complaint that the MDO
never spoke to her when he entered the office and was never polite to
her, and was always rude and sarcastic when she transferred calls to him
or when he called the office.2 In opposition to complainant's appeal,
the agency argues that the FAD should be affirmed.
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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
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.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 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.
We agree with the FAD that the actions in claim 1 fail to state a claim,
and would not reasonably likely deter EEO activity. For the most part,
claim 1 is about one argument late in the night or early morning of
September 10--11, 2008 where the MDO allegedly lost his temper and
berated complainant about her efforts to start working in a bid she was
awarded (as well as berating someone else to get complainant training
so she could start working her bid). This event is not sufficiently
severe or pervasive to alter the conditions of complainant's employment,
even when considered together with the MDO's alleged prior interactions
with complainant. The MDO was not complainant's direct supervisor,
and complainant does not indicate that her interactions with him were
frequent. Complainant also contended that the MDO told her not to
accept documentation and that was not part of her job. According to
complainant, this is a basic function of her job. However, complainant
does not indicate that it was a career enhancing duty, or that she had
insufficient duties.
The FAD properly dismissed claim 2 for the reason stated in the FAD.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
July 2, 2009
__________________
Date
1 Complainant alleged these matters on her information for pre-complaint
counseling form and complaint, and clarified them on appeal.
2 On appeal, complainant also contended that the MDO denied her the
opportunity to work on the holiday schedule. This was not part of
her complaint.
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0120091475
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091475