0120093349
12-18-2009
Gordon A. Perry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Gordon A. Perry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120093349
Agency No. 4J606008809
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated June 30, 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. In his complaint, complainant alleged that he was
subjected to discrimination based on his race (black), national origin
(American), sex (male), religion (Roman Catholic), age (63), and reprisal
for prior protected EEO activity under Title VII and the ADEA when:
ongoing since March 16, 2003, he has been subjected to a hostile work
environment including:
* on February 19, 2009, his trouble calls for malfunctions of the surge
system were ignored,
* on February 23, 2009, his trouble calls on the conveyer system caused
processing failures were not responded to timely, and
* on March 11, 2009, the District Manager made a demeaning comment to
him.
Complainant is a mail flow coordinator, EAS-14. According to a position
description, the purpose of this job is to take action to facilitate the
efficient and continuous movement of mail. The mail flow coordinator
communicates with maintenance personnel to advise of malfunctions,
advises mail processing supervisors of problems and possible solutions,
and serves as the focal point for information exchange between maintenance
and mail processing on system operating conditions, work load patterns,
and staff utilization.
In its June 30, 2009, FAD the agency dismissed a portion of the
complaint for stating the same claim that had been decided by the agency.
Specifically, in a prior November 10, 2008, FAD, the agency procedurally
dismissed previous complaint 1J612001008, which also alleged a hostile
work environment. In the later FAD, the agency dismissed the hostile work
environment claim from March 16, 2003 to November 10, 2008, for stating
the same claim which had been decided in the prior FAD. 29 C.F.R. �
1614.107(a)(1). The agency dismissed the remaining portion of the
complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The record reflects that on October 23, 2008, complainant filed previous
complaint 1J612001008 alleging discrimination based on sex and age, in
relevant part, when (1) beginning in March 2003, he was subjected to a
continuing and escalating pattern of discrimination when employees did
not properly perform their jobs and management did not provide proper
oversight, and a co-worker persuaded mechanics to ignore his request to
fix mechanical anomalies; and (2) on August 1, 2008, appropriate action
was not taken when he reported a mail blockage. Complainant did not
appeal the November 10, 2008, FAD which dismissed this complaint.
On appeal, complainant does not dispute the agency's finding that up
to November 10, 2008, the two complaints allege the same harassment.
He writes that the two complaints regard an unremitting harassing work
environment that constitute a unified whole. He explains that he did
not appeal the November 10, 2008, FAD because his mother was seriously
ill at the time, and died on January 15, 2009.
Complainant never appealed November 10, 2008, FAD. As he did not appeal
it, the dismissal therein is final.1 Accordingly, we affirm the agency's
dismissal of complainant's claim of hostile work environment from March
16, 2003, to October 23, 2008, the date he filed complaint 1J612001008.
Complainant contends that the above harassment continued. The incidents
of February 19 and 23, 2009, are examples of maintenance not timely
resolving equipment failures. For the period after October 23, 2008,
through documentation he submitted on appeal in the in the form of emails,
complainant recited more examples of maintenance allegedly not timely
resolving equipment failures from December 2008 to July 2009, one or
two examples of maintenance not putting equipment failures in reports,
and an example of a maintenance supervisor only giving complainant the
details of the cause of an equipment failure when pressed by him.
In describing the alleged harassment which began in March 2003,
complainant wrote in his complaint that he had been held accountable,
but did not explain to what he referred. According to the counselor's
report, the plant manager said that to his knowledge complainant was not
disciplined or reprimanded for any instances of plan failures caused by
equipment malfunctions. On appeal, complainant, who has been on tour 3
since March 2003, writes that when he arrived, tour 3 ranked second or
third in productivity compared to tours 1 and 2, but now consistently
ranks first. He writes that the other tours have experienced declining
production volume, while tour 3's increased. He gave credit for helping
maintain productivity to the acting plant manager, the tour 3 manager
of distribution operations (who appears to be a manager over complainant
since she had input into his 2008 mid-year appraisal), various equipment
mechanics, and so forth. In his narrative appeal argument, complainant
also recites various incidents of alleged harassment mostly with little
specificity and mostly without identifying when they occurred.
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.
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, supra.
Applying the above legal principles, we affirm the agency's finding that
the portion of complainant's complaint occurring after October 23, 2008,
fails to state a claim. While complainant recites examples of problems
with maintenance, we do not find this rises to the level of a hostile
work environment. Complainant indicates that even with these problems,
he still had the most productive tour and its productivity increased while
the others decreased. He also cited the support of upper level managers,
at least one who appears to be in a supervisory capacity over him.
Moreover, while the March 11, 2009, alleged incident of the district
manager commenting that a remark complainant made was "a stupid thing to
say" was unkind; it does not rise to the level of harassment. We also
find that the alleged harassment occurring after October 23, 2008,
would not likely reasonably deter EEO activity.
Accordingly, the FAD is affirmed.
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 18, 2009
__________________
Date
1 To the extent complainant is attempting to appeal the FAD now, we find
the appeal to be untimely. Such an appeal would be over six months late,
and complainant has not adequately explained by he was unable to file
it much earlier.
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0120093349
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120093349