0120171857
06-12-2018
Lynette 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
Lynette B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120171857
Hearing No. 560201600268X
Agency No. 4J630011715
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403(a), the Agency's March 30, 2017 Final Order concerning an equal employment opportunity ("EEO") complaint alleging 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 City Letter Carrier at the Marian Oldham Post Office in St. Louis, Missouri.
On December 29, 2015, Complainant filed an EEO complaint alleging discrimination and hostile work environment by the Agency based on reprisal for her prior EEO activity associated with Agency Case No. 4J630002415, (alleging harassment by her manager ("M1") based on sex, race, age, and reprisal) when:2
On October 22, 2015, she was informed that M1 felt that she should seek Employee Assistance Program ("EAP") counseling because she "did not know how to follow instructions from a man."
After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing. The AJ subsequently issued a decision on March 17, 2017, dismissing the complaint for failure to state a claim. The AJ noted that Complainant did not allege that she suffered any job related injury caused by the referral to EAP, and she did not allege that she was penalized or otherwise disciplined in connection with the referral.
The Agency issued its final order adopting the AJ's finding that Complainant failed to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. � 1614.107(a)(1) provides 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
For claims of reprisal, adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Commission policy dictates that a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007).
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). For the instant complaint, we find that Complainant's allegations are insufficient to state a claim of a hostile work environment.
It is well established that a referral to EAP on its own does not adversely affect the terms or conditions of a complainant's employment because EAPs are confidential and are not disciplinary actions. See Phillips v. United States Postal Serv., EEOC Request No. 05880558 (Oct. 27, 1988). It is the Commission's position that a referral to an Employee Assistance Program ("EAP") cannot render an employee "aggrieved" to state a claim within our regulations unless it is part of a harassment complaint. (emphasis added) See Hansen v. United States Postal Serv., Request No. 05980707 (Apr. 29, 1999) citing Hatchett v. United States Postal Serv., EEOC Request No. 05950758 (May 16, 1997). As the AJ thoroughly explained, this precedent applies regardless of the broader threshold for stating a claim of reprisal. Moreover, as the AJ emphasized in her decision, there is no evidence that Complainant was ordered to attend EAP, that she ever contacted an EAP counselor, or attended any counseling. The AJ further notes that Complainant has not alleged that due to M1 referring her to EAP counseling, she "suffered [a] job-related injury... for example, that she was penalized or otherwise disciplined in connection with the referral or threatened with discipline if she did not meet with an EAP counselor."
On appeal, Complainant argues that her complaint is distinguishable from the extensive case law examples provided by the AJ. Specifically, Complainant alleges that the AJ erred by failing to consider the "context" of M1's referral of Complainant to EAP counseling. Specifically, she did not appear to connect M1's action of referring Complainant to EAP with M1's stated reason for doing so. It is undisputed that M1's reason, "[that Complainant "did not know how to follow instructions from a man]" was sexist and derogatory. As additional context, Complainant states that the timing of M1's comments indicates reprisal because her prior EEO complaint, which named M1 and alleged sex discrimination, had been filed only six months before, and was still pending a decision. According to Complainant, taking context into consideration M1's actions were "reasonably likely to deter...protected activity," thus stating a claim of hostile work environment based on reprisal.
We find that the events described, even if proven to be true, 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. Dep't of the Treasury, Request No. 05970077 (Mar. 13, 1997). Although a referral to EPA may be actionable as part of a claim of harassment, even in "context" Complainant is describing a single isolated incident, and has offered no evidence that the incident was particularly severe, given that she was harmed as a result. We have repeatedly found that allegations of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (finding allegations that a supervisor "verbally attacked" complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign-in log, were insufficient to state a harassment claim); see also Banks v. Dep't of Health and Human Serv., EEOC Request No. 05940481 (Feb. 16, 1995) (finding allegations that on one occasion a supervisor threw a file on the complainant's desk and berated her in a loud voice in the presence of other employees insufficient to state a harassment claim) Likewise, we find the instant complaint, comprised a few isolated incidents of alleged harassment, fails to state a harassment claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's Final Order.
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.
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. 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 12, 2018
__________________
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 Complainant's complaint initially included two additional claims, which the AJ properly dismissed, finding Complainant raised the same issues in Agency Case No. 4J630002415. See EEOC Appeal No. 0120161944 (Sept. 20, 2017) (affirming the Agency's dismissal) reconsideration denied EEOC Request No. 0520180072 (Mar. 7, 2018). On appeal, Complainant has not challenged the Agency's dismissal of her first two claims.
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