0120150762
10-04-2016
Lavonne E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lavonne E.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120150762
Agency No. 1F901008813
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 24, 2014, dismissing her 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 Postal Support Employee at the Agency's LAX-ISC facility in Los Angeles, California.
On October 22, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), color (Black), and reprisal when ,on July 25, 2013, she was not reinstated to her position of Postal Support Employee after her term expired; and (2) in June 26, 2014, her supervisor asked her what time she came to work and "got in her face" during the subsequent conversation.
The Agency dismissed claim 1 for being identical to a previous complaint and claim 2 for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
Appeal
As an initial matter, we note that there was some confusion with Complainant's appeal. Complainant submitted more than one appeal. Given that Complainant's first appeal was filed on December 16, 2014 (docketed as the instant appeal), and included a copy of the Agency's final decision dated November 24, 2014, we find the appeal timely.
In another appeal form dated October 3, 2015 (docketed as EEOC Appeal No. 0120160218), Complainant included a copy of the dispute resolution specialist's report for Agency No. 1F-401-0090-15, but also referenced the final Agency decision for Agency No. 1F-901-0113-14, at issue herein. Appeal No. 0120160218 was administratively closed as a duplicate of the instant appeal. Complainant did not provide arguments or explanations that would have provided clarity to her appeals. Thus, we are only addressing the final decision in Agency No. 1F-901-0113-14.
Claim 1
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that an agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
The Agency provided evidence that Complainant previously contacted an EEO counselor regarding the failure to reinstate her to her position, but did not follow through with the filing of a formal complaint. Once a complainant has withdrawn an informal complaint, absent a showing of coercion, the complainant may not reactivate the EEO process by filing a formal complaint on the same issue. See Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). Thus, the Agency's dismissal of this claim is affirmed.
We note that Complainant also filed a grievance on the matter. The grievance was settled and Complainant was eventually reinstated.
Claim 2
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
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. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment'." Following a review of the record, we find that assuming the single incident occurred as alleged, Complainant fails to state a viable claim of a discriminatory hostile work environment. The action alleged, without more, is simply insufficiently severe or pervasive to state a valid claim.
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
October 4, 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.
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