01993769_et_al
06-26-2001
Earl D. Fanning, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Earl D. Fanning v. United States Postal Service
01993769, 01993770, 01993771, 01993773, 01993852, 01A00547
06-26-01
.
Earl D. Fanning,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01993769,
01993770,
01993771,
01993773,
01993852,
01A00547
Agency Nos. 4H-350-0166-99,
4H-350-0074-99,
4H-350-0165-99,
4H-350-0073-99,
4H-350-0075-99,
1H-351-0076-99
DECISION
INTRODUCTION
Complainant filed timely appeals with this Commission from the agency's
final decisions dismissing his complaints 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., and � 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. The appeals are accepted
in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed complainant's
complaints for failure to state a claim.
BACKGROUND
In his complaints, complainant claimed that he was subjected to
discrimination on the bases of race (black), color (dark brown), sex
(male), disability (lower back / cervical strain) and retaliation (prior
EEO activity) when:
1) on January 13, 1999, a supervisor was not allowed to attend a
mediation hearing involving him, and management made a profane reference
to him (complaint filed March 2, 1999) (Appeal No. 01993769, Agency
No. 4H-350-0166-99);
2) on November 13 and 14, 1998, he was instructed to work in Case #27
when working on the outgoing primary (complaint filed March 9, 1999)
(Appeal No. 01993770, Agency No. 4H-350-0074-99);
3) on December 30, 1998, he received an unfavorable Step 2 grievance
decision, which combined a letter of warning and a seven-day suspension
into a three-day suspension (complaint filed March 2, 1999) (Appeal
No. 01993771, Agency No. 4H-350-0165-99);
4) on November 12, 1998, he was given an investigative interview during
which he was accused of excessive talking (complaint filed March 9, 1999)
(Appeal No. 01993773, Agency No. 4H-350-0073-99);
5) on November 4, 1998, he was accosted by management and accused of
extending his break (complaint filed March 9, 1999) (Appeal No. 01993852,
Agency No. 4H-350-0075-99);
6) on July 21, 1999, he was not allowed to have his attorney present
during a meeting with the Manager, Labor Relations, and the Injury
Compensation Specialist (complaint filed August 16, 1999) (Appeal
No. 01A00547, Agency No. 1H-351-0076-99).
The agency dismissed claims 1, 2, 3, 4, 5, and 6 for failure to state a
claim pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1). It found
that complainant had failed to show in each case that he was aggrieved by
the action taken by the agency. Complainant filed the instant appeals,
without comment.
ANALYSIS AND FINDINGS
Initially, we note that we are consolidating complainant's appeals under
the authority granted the Commission in EEOC Regulation 29 C.F.R. �
1614.606.
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).
We find that the agency properly dismissed each claim for failure to state
a claim. Regarding claim 1, where complainant claimed that a particular
supervisor was not allowed to attend his mediation, a complainant cannot
bring a complaint alleging improper processing of his EEO complaint.
29 C.F.R. � 1614.107(a)(8). Regarding the profane reference allegation
in claim 1, the Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action are not a direct and personal
deprivation sufficient to render an individual aggrieved for the purposes
of Title VII. See Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Service,
EEOC Request No. 05940695 (February 9, 1995).
Regarding claims 2, in which complainant was instructed to work on a
certain Case, and 5, that he was accosted by management and accused
of extending his break, we find that he did not show how he suffered a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy.
Regarding claims 3 and 6, the Commission has held that an employee
cannot use the EEO complaint process to lodge a collateral attack on
another proceeding. Kleinman v. U.S. Postal Service, EEOC Request
No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Service, EEOC
Request No. 05930106 (June 24, 1993). The proper forum for complainant to
raise challenges to actions which occurred during the grievance process
or during the Office of Workers' Compensation Programs process was in
that process itself. Therefore, complainant has failed to state a claim
under 29 C.F.R. �1614.107(a)(4).
Regarding claim 4, this Commission has consistently held that official
discussions alone do not render an employee aggrieved. See Miranda
v. United States Postal Service, EEOC Request No. 05920308 (June 11,
1992); Devine v. United States Postal Service, EEOC Request Nos. 05910268,
05910269 and 05910270 (April 4, 1991). In the present case, while
the complainant stated that he was told that he would be written up,
we do not find a claim that the discussion was actually recorded in any
personnel or supervisory files, nor that it can be used as a basis for
any subsequent disciplinary action.
Additionally, we find that the agency improperly analyzed each
incident by itself to determine whether complainant stated a claim
in his complaints. Complainant claimed that he was being subjected
to a pattern of harassment. The Commission has previously held that
when confronted with claims involving multiple allegations, an agency
should not ignore the "pattern aspect" of a complainant's allegations
and define the issues in a piecemeal manner where an underlying theme
unites the matters complained of. Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 3, 1994); Ferguson v. Department of
Justice, EEOC Request No. 05970792 (March 30, 1999); Drake v. Department
of the Air Force, EEOC Request No. 05970689 (March 29, 1999). We find
that complainant's complaints, when taken together, allege that he
was subjected to a pattern of harassment consisting of a hostile work
environment, and provide incidents to illustrate his work conditions,
based on his race, color, sex, disability, and retaliation.
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). We find, however, that complainant's claims are not sufficient
to state a claim of harassment in that they are not severe or pervasive.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___06-26-01_______________
Date