0120161119
06-09-2016
Jame T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jame T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161119
Agency No. 4G320015615
DECISION
Complainant filed an appeal with this Commission from the Agency's decision (Dismissal) dated November 5, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's South Jacksonville Station facility in Jacksonville, Florida.
On October 27, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discriminatory and retaliatory harassment on the bases of race (African-American), age (58), and reprisal for prior protected EEO activity when:
1. on September 9, 2014, management failed to complete an adjustment on Complainant's route within 52 days;
2. on or about July 9, 2015, Complainant was issued a "fact-finder"; and
3. on July 18 and 30, 2015, street reviews were conducted on Complainant's route and the results were not shared with Complainant.
The Agency dismissed allegation 1 for untimely EEO Counselor contact, and allegations 2 and 3 for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
We note initially that with regard to allegation 2, the Agency characterized it as follows: "[o]n a date to be specified in July, 2015, [Complainant was] issued a Letter of Warning (LOW)." In his informal complaint, Complainant referred to the Letter of Warning, but in his Formal Complaint, Complainant made no mention of it. Instead, Complainant said, "[a]round July 7, 2015 [a management official] returned to South [Jacksonville] Station off detail, forty eight hours later I was given a fact finder." On appeal, Complainant references an LOW he was issued on or about August 18, 2015, but this was not mentioned in his Formal Complaint. We therefore find that allegation 2 should be characterized as above.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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. The Supreme Court has held that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). The Court recognized that allegations of harassment and the existence of a hostile work environment involve, by their nature, a series of incidents linked by a pattern of conduct. This is contrasted with claims involving discrete acts such as a promotion or termination which are clearly defined. In those instances, the Court held that "discrete discriminatory acts are not actionable if lime barred, even when they are related to acts alleged in timely filed charges." Id. Untimely discrete acts may be used as background evidence in support of a timely claim, however. Id.
In its Dismissal, the Agency found that allegation 1 should be dismissed for untimely EEO Counselor contact on the grounds that management's September 2014 failure to complete an adjustment on Complainant's route within 52 days constituted a "discrete act" and that Complainant did not contact an EEO Counselor until August 5, 2015, which is beyond the 45-day limit. We disagree with the Dismissal's finding that failing to timely complete a route-adjustment constitutes a "discrete act" under Morgan. Instead we find that such an alleged failure by management is part of Complainant's overall and timely-filed claim of ongoing harassment, in conjunction with allegations 2 and 3.
However, we further find that the harassment claim (made up of allegations 1 - 3) should nevertheless be dismissed for failure to state a claim. When the complainant does not allege he or she is "aggrieved" within the meaning of our regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). With regard to allegations 2 and 3, neither allegation states a valid claim of disparate treatment or reprisal as Complainant has not alleged he incurred harm from being issued a "fact-finder" or from not being provided the results of a street review of his route. We note in this regard that Complainant specified in his Formal Complaint that "no discipline has resulted from this fact-finder." Nor do we find that being issued a "fact-finder" or being kept in the dark regarding the results of a street review to be the kind of actions that would deter Complainant or others from engaging in protected EEO activity.
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. Thus, not all claims of harassment are actionable. Following a review of the record we find that the three actions proffered by Complainant, even assumed to be true and viewed together, do not rise to this standard.
Accordingly, the Agency's Dismissal is AFFIRMED.
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 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. 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
June 9, 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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120161119
4
0120161119