0120160893
04-26-2016
Lawrence L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lawrence L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120160893
Agency No. 1G336014315
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated December 4, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Expeditor at the Agency's Ybor City Processing and Distribution Center facility in Tampa Florida. On November 20, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian) and sex (male) when:
1. After abolishing 3 General Expeditor bids, management utilized a SPBS Clerk without completing PS Form 1723 (Assignment Order);
2. On October 27, 2015, Complainant was accused, in front of co-workers, of backing up on the dock;
3. On November 10, 2016, Complainant was questioned by two managers regarding the accusation stated in claim #2.
The Agency dismissed the claims for failure to state a claim.
ANALYSIS AND FINDINGS
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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the 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 claim # 1, we note that Complainant failed to identify a specific harm that he sustained. Complainant cannot pursue a generalized grievance that members of one protected group are afforded benefits not offered to other protected groups, unless he further alleges some specific injury to himself as a result of the alleged discriminatory practice. See Warm v. Seldin. 422 U.S. 490, 499 (1975). Such an allegation constitutes a generalized complaint and hence fails to state a claim. See id. See also Crandall v. Department of Veterans Affairs, EEOC Request No. 05970508 (September 11, 1997); Henderson v. Department of Homeland Security, EEOC Appeal No. 01A42129 (October 24, 2004).
On appeal, Complainant argues that Management placed a coworker (CW) outside of Complainant's protected bases in a similar position to Complainant without requiring that CW go through the same requirements Complainant had to go through when he won the position. Specifically, Complainant asserts that:
I was discriminated against since I as a member of a class (white males) had to use the in-place bidding system to obtain a tour 3 General Expeditor bid with Sunday/Monday off and [CW] (a Hispanic female) was placed into the higher level position as a General Expeditor Sunday/Monday off without having to bid, without the detail being posted, due to the fact that a detail with Sunday/Monday off was not even available as there were no such vacant bids with Sunday/Monday off and the only vacancy was Monday/Tuesday off due to an employee on medical leave. To this day management has not completed one required PS Form 1723 for [CW] detail despite the fact that she was in a detail for several months.
Complainant's Appeal Brief.
To the extent Complainant is alleging he incurred harm by being treated differently, we note that Complainant was not denied the position and hence he has not met his burden of showing he incurred harm. To the extent that management did not follow the Collective Bargaining Agreement, we note that this Commission does not have jurisdiction to enforce the Collective Bargaining Agreement.
With regard to claims # 2 & 3, we note that 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. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, such as the complaint at issue here, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
Following a review of the record, we find that the actions complained of were insufficiently severe or pervasive to alter the conditions of Complainant's employment and we find that Complainant fails to state a claim with regard to all three claims.
CONCLUSION
The Dismissal 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.
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 26, 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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