Kendrick B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionApr 1, 20160120142077 (E.E.O.C. Apr. 1, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kendrick B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120142077 Agency No. 4J-630-0033-14 DECISION Complainant filed an appeal with this Commission from the Agency's decision dated April 16, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND On April 4, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity since December 5, 2013, and ongoing when: 1. On a date not specified, someone was brought in from another station to perform a street observation on you; 2. On a date not specified, you were not allowed to eat and drink at your case and a co- worker was; 3. On a date not specified, your manager told you not to speak to her (the manager), but allowed a coworker to make inappropriate comments to her (the manager); and 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. 0120142077 2 4. On a date not specified, you were not allowed to case your Delivery Point Sequence (DPS) mail, but a co-worker was. The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency noted that Complainant alleged that from December 5, 2013, and ongoing his manager harassed him. The Agency noted Complainant listed four examples, over a four month period, where Complainant alleged he was treated differently than a co-worker. The Agency stated there was no evidence in the record Complainant was subjected to any adverse employment action. The Agency also noted that the actions alleged were not sufficiently severe or pervasive enough to create a hostile work environment. Additionally, the Agency stated the incidents identified were not likely to deter protected activity. ANALYSIS AND FINDINGS 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 (April 21, 1994). The Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Service, EEOC Request No. 05940695 (February 9, 1995). The Commission interprets the statutory retaliation clauses “to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.” EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). In the present case, we find the Agency properly dismissed Complainant’s complaint. We note that on appeal Complainant does not dispute the Agency’s definition of his complaint. Upon review, we find Complainant failed to show that he suffered a harm or loss to a term, condition, or privilege of employment for which there is a remedy. With regard to his claim that he was told not to case his DPS mail, we note Complainant does not allege that this action lead to any problems for him with regard to performing his job. Moreover, even if proven to be true and viewed in a light most favorable to Complainant, the record does not indicate that the alleged incidents were sufficiently severe or pervasive to alter the conditions of employment and constitute a hostile work environment. Finally, we find that Complainant has not shown that the alleged incidents were reasonably likely to deter Complainant or others from engaging in protected activity. 0120142077 3 CONCLUSION 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). 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. 0120142077 4 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 April 1, 2016 Date Copy with citationCopy as parenthetical citation