Irvin W.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Mar 11, 2016

0120142072 (E.E.O.C. Mar. 11, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Irvin W.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120142072

Agency No. 1K-302-0032-14

DECISION

Complainant filed an appeal with this Commission from the Agency's decision dated April 8,
2014, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision.

On March 20, 2014, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race (African-American), age, and in reprisal for prior
protected EEO activity when:

1. On December 28, 2009, Complainant’s Supervisor engineered a situation with
Complainant’s time badge and blocked Complainant’s exit from the office;

2. On February 2, 2014, Complainant’s Supervisor arrived to Complainant’s work
area with his fist clenched and jaw tight; and

3. On February 9, 2014, Complainant’s Supervisor entered the break room where
Complainant was sitting and said “be out of my way in a minute” as he walked by
Complainant.
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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The Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(1), for raising the same
issue that Complainant raised in a prior complaint, Agency Case No. 1H-302-0018-10.
Alternatively, the Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact.

In addition, the Agency dismissed claims (2) and (3) pursuant to 29 C.F.R. § 1614.107(a)(1),
for failure to state a claim. The Agency stated that Complainant alleged that on February 2,
2014, his supervisor arrived to his work area with his fist clenched and jaw tight. The Agency
noted Complainant stated that he reported this action to management and it is currently under
investigation. The Agency noted Complainant did not allege there were any other actions
associated with this alleged incident. The Agency stated Complainant further alleged that on
February 9, 2014, his Supervisor entered the break room where Complainant was sitting and
said “be out of my way in a minute” as he walked by Complainant. The Agency found
Complainant failed to state a claim of harassment. Further, the Agency did not find that the
incidents raised were likely to deter protected activity. Finally, the Agency found no evidence
that Complainant suffered any measurable harm; i.e., no discipline was issued and there were
no changes in Complainant's hours, wages, and/or other terms and conditions of employment.

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss a
complaint that states the same claim that is pending before or has been decided by the Agency
or Commission. The record reveals that in Agency Case No. 1H-302-0018-10 Complainant
alleged that he was subjected to discrimination based on race and age when on December 29,
2009, he was assaulted by his Supervisor regarding his clock rings for December 28, 2009.
The Agency issued a final decision dismissing Complainant’s complaint on May 6, 2010,
which Complainant appealed to the Commission. The Commission affirmed the Agency's
decision in EEOC Appeal No. 0120102628 (September 16, 2010). Upon review, the
Commission finds that claim (1) states the same claim as was raised in the earlier complaint.

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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

Upon review of the record, we find the Agency properly dismissed claims (2) and (3) for
failure to state a claim. With regard to claims (2) and (3), we find that Complainant failed to
show that he suffered a harm or loss to a term, condition, or privilege of employment. We
also consider Complainant’s complaint as a claim of harassment. 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

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sufficiently severe or pervasive to alter the conditions of the complainant’s employment. Thus,
not all claims of harassment are actionable. Upon review, we do not find that Complainant’s
allegations are sufficient to state a viable harassment claim. We also note, with regard to
Complainant’s reprisal claims, that the Commission has held that the statutory retaliation
clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected activity. Lindsey v.
U.S. Postal Service, EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance
Manual, No. 915.003 (May 20, 1998)). However, even applying this standard, we do not find
Complainant has stated a viable claim of retaliation. Therefore, we find that the Agency’s
dismissal of claims (2) and (3) for failure to state a claim was appropriate.

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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), 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, 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).

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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

March 11, 2016
Date