0120092880
12-10-2009
Fred D. Knox, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Fred D. Knox,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120092880
Agency No. 6F000000209
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated May 12, 2009, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
At the time of the events at issue, complainant was employed by the agency
as a Computer Support Specialist in San Mateo, California. In his EEO
complaint, complainant alleged that he was subjected to discrimination
on the bases of race, disability, age and reprisal for prior protected
EEO activity under when:
1. on July 20, 2000, boxes were dropped on complainant's feet.
Complainant further alleges that the injuries from that incident developed
into gout infection;
2. in October 2007, complainant's request for a computer and printer to
be installed at his desk was denied;
3. on January 22, 2009, complainant's acting supervisor alleged that
complainant was absent from his work area for 3 hours on January 21,
2009;
4. on February 4, 2009, complainant's supervisor ordered complainant
not to talk to his co-workers and suggested that he retire; and
5. on April 21, 2009, the agency assigned complainant to set up the
Pitney Bowes Machine to process payroll checks.
The agency dismissed claims 1-5 in accordance with EEOC Regulation 29
C.F.R. � 1614.107(a)(1) for failure to state a claim. The instant appeal
followed.
As an initial matter, the Commission finds that claim 1 and 2 are more
appropriately analyzed in accordance with EEOC Regulation 29 C.F.R. �
1614.107(a)(2) regarding timeliness. In claim 1, complainant alleges that
in July 2000, boxes were dropped on his feet which resulted in a gout
infection. In claim 2, he asserts that his request for a computer and
printer at his desk was denied in October 2007. The record establishes
that complainant first raised these matters with an EEO Counselor on
February 5, 2009, nine years after claim 1 and a year and a half after
claim 2. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that
complaints of discrimination should be brought to the attention of the
Equal Employment Opportunity Counselor within forty-five (45) days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within forty-five (45) days of the effective date
of the action. Upon review, the Commission finds that claims 1 and 2
were not brought to the attention of an EEO Counselor in a timely manner
and are not sufficiently related to the remaining claims to be part of
a single claim of harassment. Therefore, claims 1 and 2 are dismissed
in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2).
With regard to the remaining claims, complainant alleges that the agency
subjected him to harassment when he was accused of being away from
his work area for 3 hours, ordered not to talk to his co-workers and
allegedly advised by his supervisor to retire. Complainant also alleges
that the agency harassed him when he was assigned the task of setting up
the Pitney Bowes machine to process payroll checks on April 21, 2009.
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).
Upon review of the instant matter, the Commission finds that complainant
has failed to state a claim of actionable harassment. Specifically, we
find that complainant has not indicated that he suffered any specific harm
with respect to the terms and conditions of his employment. Moreover,
we find that the incidents alleged are not so severe and pervasive that
they altered the conditions of complainant's employment.
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).
Accordingly, we find that complainant has failed to state a claim in
accordance with EEOC Regulations. The agency's dismissal decision was
proper and is hereby affirmed for the reasons set forth herein.
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
December 10, 2009
__________________
Date
2
0120092880
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092880