0120160113
01-29-2016
Leonardo M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leonardo M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120160113
Agency No. 1C-191-0019-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 20, 2015, 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 an Automation Clerk at the Agency's Lindberg Plant in Philadelphia, Pennsylvania.
On August 8, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of race, sex, and in reprisal for prior EEO activity when:
on March 25, 2015, the manager refused to meet with him on a Step 1 grievance, made derogatory statements to him in the presence of others, and threatened to have him removed from the building.
In its August 20, 2015 final decision, the Agency dismissed the instant formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency also found that the instant complaint constitutes a collateral attack on negotiated grievance process. The Agency stated that Complainant should have raised his allegations through the negotiated grievance process, not through the EEO process.
Complainant, on appeal, states that the fact that the Agency dismissed his complaint "on ALL counts based on failure to meet EEO threshold of being formally 'aggrieved;' that the complainant would actually have had to been 'thrown out' of the building to have been harmed...by itself this is hard to comprehend as any and ALL types of threats violate the aforementioned federally mandated 'Zero Tolerance' policy to which the USPS is subject to adhere [emphasis in its original]."
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of C.F.R. � 1614.103. 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).
Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of her employment. There is no allegation that Complainant was disciplined or subjected to any adverse personnel action as a result of the alleged events. To the extent that Complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven to be true and considered together, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, the alleged Agency actions were not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998).
Additionally, the formal complaint constitutes a collateral attack on the negotiated grievance process. An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during negotiated grievance process (such as a manager's refusal to meet with him on a Step 1 grievance) is within that process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the negotiated grievance process.
The Agency's final decision dismissing Complainant's formal complaint for the reasons stated herein 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
January 29, 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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