0120091611
07-09-2009
Gerald W. Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gerald W. Mitchell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091611
Agency No. 4G-720-0020-09
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 5, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (African American), sex (male), color (Black),
and reprisal for prior protected EEO activity under Title VII when:
1. Since June 13, 2008, District Management has failed to respond to
written correspondence from complainant; and
2. On November 14, 2008, an African American co-worker of complainant
was denied the opportunity to act as a 204b supervisor.
The agency dismissed both claims pursuant to 29 C.F.R. � 1614.107(a)(1).
The agency noted that complainant failed to establish that he was
aggrieved by either actions. Further, the agency asserted that
complainant has not shown that the agency's actions created a hostile
work environment.
Complainant appealed. On appeal, complainant clarified that the
correspondence raised in claim (1) related to the agency's decision to
deny him leave under the Family Medical Leave Act (FMLA). Further,
complainant argued that the denial of opportunity to the co-worker
created a hostile work environment. As such, complainant requests that
the Commission reverse the agency's dismissal.
In claim (1), complainant asserted that the agency failed to respond to
correspondence related to the agency's denial of his request for leave
under FMLA. The Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July
30, 1998); Kleinman v. United States Postal Service, EEOC Request No.
05940585 (September 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 25, 1993). The proper forum for
complainant to have raised his challenges to the agency's denial of
FMLA leave is with the Department of Labor, not the EEOC. We note
that complainant has not asserted that the FMLA leave would constitute
a reasonable accommodation. As such, we find that this claim raised
in the complaint is an improper collateral attack on the FMLA system
which should have been raised within the appeals processes provided
for in that system. As such, we determine that this claim was properly
dismissed by the agency.
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 complainant failed to state a
claim with respect to claim (2). We note that complainant was not harmed
when management chose not to allow a co-worker to be a 204b supervisor.
Complainant also asserted that claim (2) constituted a claim of
harassment. Consistent with the Commission's policy and practice of
determining whether a complainant's harassment claims are sufficient
to state a hostile or abusive work environment claim, the Commission
has repeatedly found that claims of a few isolated incidents of
alleged harassment usually are not sufficient to state a harassment
claim. See Phillips v. Department of Veterans Affairs, EEOC Request
No. 05960030 (July 12, 1996); Banks v. Health and Human Services,
EEOC Request No. 05940481 (February 16, 1995). Upon review, we find
that complainant has not shown that the agency's action stated a claim
of harassment. Therefore, we find that the agency's dismissal of claim
(2) was appropriate.
CONCLUSION
Accordingly, the Commission affirms the agency's final decision.
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 9, 2009
__________________
Date
2
0120091611
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091611