Laurice S,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Aug 18, 2020

2020003337 (E.E.O.C. Aug. 18, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Laurice S,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020003337 Agency No. 1C-371-0012-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 30, 2020, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency’s Chattanooga Processing and Distribution Center in Chattanooga, Tennessee. On December 5, 2019, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On March 10, 2020, Complainant filed a formal EEO complaint. As summarized by the Agency, Complainant claimed that she was discriminated against based on race and sex when: 1. on August 30, 2019, Complainant was placed on Emergency Placement; 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. 2020003337 2 2. on November 4, 2019, a co-worker yelled at Complainant and Complainant had to call the police. In its March 30, 2020 final decision, the Agency dismissed Complainant’s formal complaint on two procedural grounds. First, the Agency dismissed claim 1, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency found that Complainant’s initial EEO Counselor contact was December 5, 2019, which was well beyond the 45-day limitation period. Second, the Agency dismissed claim 2, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency determined that Complainant was not aggrieved, and the alleged incident was not sufficiently severe or pervasive enough to set forth an actionable claim of harassment. The instant appeal followed. On appeal, Complainant asserts that she never intended to include the circumstances involving the alleged incident identified in claim 1 as part of her formal complaint. Complainant states, “I never filed [an] EEO on incident or issue #1.” Complainant clarifies that claim two is the only claim at issue. Complainant states that on November 4, 2019, the Lead Clerk “yelled violently at [her] for not running reject mail in automation.” Complainant further states that the Lead Clerk was “yelling, cursing, [and] pushing equipment at [her] and [she] felt threatened” and called the police. Complainant explains that she filed her complaint because she believed that she was “blatantly discriminated against” and that she was subjected to a hostile work environment. However, Complainant also acknowledges that she was not disciplined, and her badge was not taken away from her after she called the police on the Lead Clerk. ANALYSIS AND FINDINGS Preliminary Matter - Claims at Issue We note that Complainant asserts on appeal that only claim 2 is in dispute because this claim is the only claim she raised in her formal complaint.2 Therefore, we limit our discussion below to the Agency’s dismissal of claim 2 for failure to state a claim. 2 Our review of Complainant’s formal complaint reflects that Complainant identified in box 15 “Nov. 4, 2019” and “August 29, 2019 thru Sept. 27, 2019” as the dates of the alleged discriminatory acts at issue. 2020003337 3 Claim 2: Failure to State a Claim 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). Here, there is nothing in the record supporting a claim that Complainant was adversely affected by the alleged incident at issue. Complainant has not alleged that she was penalized in anyway by management as a result of her calling the police on the Lead Clerk. Consequently, Thus, there is no indication that Complainant suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Moreover, to the extent that Complainant claims that she was that she was the victim of harassment, we do not find that the alleged incident in claim 2, even if proven true, is sufficiently severe or pervasive, by itself, to set forth an actionable claim of harassment. First, the record reflects that the instant matter was an isolated event. Second, the alleged incident is of a type that typically arise out of workplace conflicts or communications. The anti-discrimination laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc,. 523 U.S. 75, 81 (1998). Therefore, Complainant’s complaint of harassment, without more, fails to state a claim upon which relief can be granted pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency’s final decision dismissing the formal complaint for failure to state a claim is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. 2020003337 4 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 2020003337 5 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 August 18, 2020 Date