0120162602
11-03-2016
Elliot M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elliot M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120162602
Agency No. 4K210008716
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 22, 2016, dismissing his 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 Letter Carrier at the Agency's Rosedale Branch facility in Baltimore, Maryland.
On June 17, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), color (White), and age ("40+") when, on May 4, 2015, his manager told Complainant, "you are really asking for it, and you are going to get it."
The record shows that Complainant filed a grievance in which he named his supervisor as the responding official. The grievance pertained to a violation of Article 8 of the National Agreement, specifically "forcing non ODL carriers to work overtime when ODL carriers were available." On March 10, 2016, he received notice that he won a grievance. He received a lump sum payment of $280.00 as remedial compensation.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency reasoned that "there was no persuasive evidence in the record to show that Complainant had been subjected to any adverse action or that he was denied any entitlement in relation to a term, condition or privilege of employment." The Agency stated that Complainant failed to demonstrate that he suffered a direct and personal deprivation at the hands of the agency and was therefore not considered a 'person aggrieved' and, thus, was without standing to file a charge.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that his supervisor discriminated against him when she refused to give him a worker's compensation form, refused to accept his documentation for his absence and placed him on AWOL for 66 hours. He acknowledged, however, he believed that the "real and true reason [his supervisor] was out to 'get me' was that he filed and won a grievance on March 10, 2016."
ANALYSIS AND FINDINGS
Failure to State a Claim
Our review is de novo. 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, 1614.106(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). 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).
The EEO Alternative Dispute Resolution Specialist's (ADRS) Inquiry Report indicates that he mentioned the AWOL leave claim during the pre-complaint process. He asserted that, on May 11, 2016, his supervisor did not accept his documentation for his 66 hour self-imposed absence and that he was placed on AWOL. He did not raise the leave claim on the formal complaint.
Here, Complainant is alleging discrimination on the basis of race, color, and age, with regard to a comment that was made to him regarding his job performance. There is no allegation of an injury or harm to a term, condition or privilege of employment and no alleged nexus that would link the statement to his race, color, sex or age. Significantly, he attributes the "real and true reason" for the manager's action was that he recently won a non-EEO-related grievance. Therefore, even assuming that the statement was a threat, there is no claim that he suffered a tangible loss because of the statement, due to his race, color, sex or age.
Consequently, we find that the complaint that was filed regarding the comment fails to state a claim under the EEOC regulations. Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 3, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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