0120161506
06-16-2016
Lavern B,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lavern B,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120161506
Agency No. 4J530002716
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 4, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer Operator, PS-8, at the Agency's Carol Stream P&DC facility in Carol Stream, Illinois.
On February 24, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), color (Brown), and reprisal for prior protected EEO activity under Title VII when:
1. on December 17, 2015, the supervisor told Complainant, "If you have a problem with the way the trailer is loaded, then load it yourself"; and
2. on a date not specified, the supervisor questioned Complainant about his headlights.
The Agency dismissed the formal complainant for failure to state a claim. The Agency reasoned that Complainant failed to allege he had been aggrieved in such a way that affects his term, condition, or privilege of employment because Complainant did not suffer harm.
Complainant filed the instant appeal. On appeal, Complainant requests that we reverse the Agency's dismissal. Complainant alleges that he was placed in a hostile work environment and was denied an opportunity for a promotion to the Rockford Post Office bid run because he decided to stay away from the facility out of the fear of being removed and threatened if he continued to travel to Rockford due to discrimination and retaliation.
ANALYSIS AND FINDINGS
The Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to allege that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Appeal No. 01932839 (April 21, 1994). 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. Alternatively, 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).
Complainant has not claimed he was subjected to an adverse action. In his formal complaint, Complainant lists December 17, 2015, as the date of the alleged discrimination when he expressed to a supervisor at the Rockford Post Office that his load was unsafely packed in the back of his tractor trailer. The supervisor allegedly told Complainant, "If you have a problem with the way the trailer is loaded, then load it yourself." Additionally, about three weeks later on January 5, 2016, this same supervisor allegedly told Complainant to turn off his headlights while his tractor trailer was parked on the loading dock after a contract driver complained to the supervisor. Complainant claims, in both instances, the supervisor was very aggressive in nature toward him.
The Commission has generally found that remarks or comment unaccompanied by a concrete agency action, unless particularly severe, 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 Serv., EEOC Appeal No. 01955373 (June 10, 1996); See also Henry v. U.S. Postal Serv., EEOC Appeal No. 01941022 (February 9, 1995). While Complainant may have felt mistreated by the incidents alleged, the acts of telling the Complainant he can load his own trailer and to turn off his headlights while parked on the loading dock, do not collectively rise to the level of rendering an individual aggrieved for the purposes of Title VII. See Jackson v. Dep't of Veterans Affairs, EEOC Appeal No. 01A41479 (April 15, 2004).
Under present Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term, condition, privilege of employment. Instead, a Complainant is protected from any discrimination which is reasonably likely to deter protected EEO Activity. See EEOC Compliance Manuel Section 8, "Retaliation." (August 2009). However, even with this lower standard, the Commission agrees with the Agency's finding that this altercation is not the type of event that would be likely to deter a reasonable individual from engaging in protected activity. Being told he can pack his own trailer, being instructed to turn off his headlights, and that the supervisor telling Complainant she "didn't care" he had entered the EEO process is not sufficiently severe or pervasive enough to chill a reasonable individual from engaging in protected activity. See e.g. Complainant v. Dep't of Def., EEOC Appeal No. 0120131518 (October 24, 2013); Lovell v. U.S. Postal Serv., EEOC Appeal No. 0120112771 (October 13, 2011); Benton v. U.S. Postal Serv., EEOC Appeal No. 0120113453 (December 2, 2011).2
Complainant also alleges harassment in his initial complaint that led to his claim of a hostile work environment. However even when the complaint is viewed in the light most favorable to the Complainant, it lacks the additional factual allegations supporting the claim of a hostile work environment. A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. See Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993). Complainant's claims do not meet this standard. In this case, Complaint was told he can repack the trailer if he wants to and to turn off his headlights in order stop blinding people on the loading dock. These comments are not discriminatory on their face, severe, physically threatening or humiliating, and do not appear to reasonably interfere with Complainant's work performance.
In addition to claiming he was subjected to a hostile work environment, Complainant also claims he was harmed because harassment made him fearful to continue traveling to Rockford. On appeal for the first time, he alleges he was denied the opportunity for a promotion to the Rockford bid run. To the extent Complainant is raising the denial of an opportunity for promotion as a separate claim; we will not address it since it was raised for the first time on appeal. See Hubbard v. Dep't of Homeland Sec., Appeal No. 01A40449 (April 22, 2004).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint 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 16, 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 In regards to the allegation of dissatisfaction with the processing of a pending complainant, the Agency is correct that nothing that occurs during a redress mediation can be used to form the basis of the new EEO complainant pursuant to Equal Employment Opportunity Management Directive for 29 C.F.R. Part 110 (EEO MD 110), at 3-9, Chapter 3, Section H (Spin-Off Complaints) (as Revised, Aug. 5, 2015) - thus nothing that occurred during the redress mediation on February 5, 2016, will serve as a basis for a claim of reprisal.
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