Doris C. Cabrales, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.

Equal Employment Opportunity CommissionFeb 17, 2011
0120103738 (E.E.O.C. Feb. 17, 2011)

0120103738

02-17-2011

Doris C. Cabrales, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.


Doris C. Cabrales,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service,

(Southeast Area),

Agency.

Appeal No. 0120103738

Agency No. 1H-371-0014-10

DECISION

Complainant filed a timely appeal with this Commission from a final

Agency decision (FAD) dated August 16, 2010, 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 her complaint, Complainant was a Building Equipment

Mechanic at the Nashville Processing & Distribution Center in Nashville,

TN. In her complaint, Complainant alleged that the Agency subjected

her to discrimination on the bases of race (Filipino), sex (female),

and reprisal for prior protected EEO activity:

1. when on May 18, 2010, she was subjected to a hostile work environment

by the Supervisor of Maintenance Operations (SDO) invading her space by

reaching over her while she was working on the computer doing required

training; and

2. when the Chief Steward, Tour II, on May 20, 2010, addressed

Complainant's lament about the above to the SDO, he replied "I don't

give a shit, let her do whatever she wants," and when the Chief Steward

added Complainant was bothered, the SDO said "I guess I'm just hung like

that."1

Complainant wrote that while she was sitting at a desk chair, the SDO,

who was diminutive, leaned over her head to read a list of acronyms/codes,

and while doing so his lower abdomen bumped the armrest of the chair

she was sitting in, and this made her very uncomfortable. Complainant

contended that he could have viewed the list in another cubicle.

The Agency dismissed the complaint for failure to state a claim.

It reasoned that it did not rise to the level of an actionable hostile

work environment. 29 C.F.R. � 1614.107(a)(1).

CONTENTIONS ON APPEAL

Complainant argues, in relevant part, that her complaint states a claim.

In opposition to the appeal, the Agency urges the Commission to affirm

the FAD.

ANALYSIS AND FINDINGS

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. 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, 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.

Applying the above law, we find that Complainant does not allege matters

which are sufficiently severe or pervasive to alter the conditions of

her employment. While the SDO may have invaded Complainant's space,

leaning over her without touching her to read acronyms/codes was not

sexual or abusive. Further, the SDO expressing annoyance in reaction

to the Chief Steward, Tour II raising Complainant's lament with him,

even in combination with claim 1, does not rise to the level of a

hostile environment. The annoyance was expressed to the Chief Steward,

not Complainant. Further, we find that the events in the complaint

would not reasonably likely deter protected EEO activity.

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

February 17, 2011

__________________

Date

1 In its FAD, the Agency did not capture claim 2. In her complaint,

Complainant referred to a statement by the Chief Steward, Tour II, which

she gave to the EEO counselor. On appeal, she provided a copy of the

statement, and complained it was not addressed.

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0120103738

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120103738