0120083837
06-04-2010
Michael A. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Michael A. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120083837
Agency No. 1K-281-0045-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 28, 2008, 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. For the
following reasons, the Commission MODIFIES the agency's final decision
dismissing complainant's complaint.
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed complainant's
complaint for failure to state a claim.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Custodian at the agency's Charlotte Processing & Distribution
Center in Charlotte, North Carolina. Formal Complaint, at 1.
In his complaint, complainant alleged that he was subjected to
discrimination and harassment on the bases of race (Black Hispanic1)
and reprisal for prior protected EEO activity when:
1. on June 10, 2008, he was not given a work assignment and he was
instructed by management to help a co-worker put up the "black" Prisoner
of War (POW) Flag;2
2. on June 12, 2008, he was stalked by the Manager of Maintenance
Operations (Manager), given a direct order to stay in the Registry
Cage all day, and told that the Supervisor of Maintenance Operations
(Supervisor) did not want to see him sitting down; and
3. on an unspecified date in 2008, he was paid a $528 grievance settlement
that should have been paid to another employee.
The agency dismissed each of the claims in complainant's complaint
pursuant to 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim. Agency's July 28, 2008 Final Decision, at 3-4.
Regarding claims 1 and 2, the agency found that the actions claimed,
if true, were neither sufficiently severe nor pervasive to create
a discriminatory hostile or abusive working environment. Id. at 3.
In addition, the agency found that complainant had not demonstrated
that he was an "aggrieved" employee within the meaning of 29 C.F.R. �
1614.103, as he had not suffered a personal loss or harm with respect
to a term, condition, or privilege of employment as a result of the
agency's actions. Id. Regarding claim 3, the agency found that it
was a collateral attack on the grievance process and that the proper
forum for complainant to challenge the alleged action was through the
APWU-negotiated grievance procedure itself. Id. at 4.
CONTENTIONS ON APPEAL
On appeal, complainant submits additional documents in lieu of a
narrative statement. One document complainant submits is a co-worker's
June 8, 2007 note stating that he had been told by the Manager, "The
worst thing the [agency] did was to hire vets, none of them are worth
a damn."3 In addition, complainant submits several documents regarding
a prior EEO complaint in which an EEOC Administrative Judge (AJ) found
that complainant was discriminated against on the basis of retaliation
when on or about August 27, 2005, a different manager "burst into" the
men's locker room unannounced as she was "stalking and watching him."
In response, the agency argues that complainant offered no further
evidence to rescind the dismissal of the instant complaint and requests
that the Commission affirm its final decision.
ANALYSIS AND FINDINGS
Claims 1 and 2
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. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he 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).
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. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive:" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. 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,
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.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra.
Upon review of the instant matter, in the light most favorable to
complainant, the Commission finds that complainant has failed to state
a claim of actionable harassment.4 Regarding claim 1, complainant told
the EEO Counselor that he helped other people with their work assignments
and "took offense" at the wording by management regarding the POW Flag.
EEO Counselor's Report, at 3. Regarding claim 2, complainant told the
EEO Counselor that he felt he was being punished when his work assignment
was changed from waxing the IOP Room to dusting the Registry Cage. Id.
We find that the incidents alleged were not so severe and pervasive that
they altered the conditions of complainant's employment. In addition,
we find that complainant has not shown that the alleged incidents amount
to actions that are likely to deter complainant or others from engaging
in protected activity. As such, we affirm the agency's dismissal of
claims 1 and 2 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim.
Claim 3
The Commission has held that 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. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). However, the Commission has
also held that an allegation of the discriminatory application of the
grievance process, when such process is within the agency's control,
is sufficient to state a claim if the allegation is within the purview
of the EEO regulations. See Cron v. United States Postal Service,
EEOC Request No. 05890272 (July 27, 1989); Davis v. United States
Postal Services, EEOC Request No. 05901011 (November 2, 1990). Here,
complainant is alleging discrimination when he received a grievance
settlement that he believes should have been paid to someone else.
Complainant alleges that the agency intentionally took such an action
to create a hardship for him, as questions were asked about the money
he erroneously received. July 10, 2008 Information for Pre-Complaint
Counseling, at 1. As the alleged discriminatory action was an internal
action within the agency's control, we find that the agency improperly
dismissed claim 3 for failure to state a claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission AFFIRMS
the agency's dismissal of the claims 1 and 2, but REVERSES the agency's
dismissal of claim 3 and REMANDS that matter in accordance with the
Order below.
ORDER
The agency is ORDERED to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File a Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 4, 2010
Date
1 We note that, within the Commission's purview, the term "Hispanic"
denotes a national origin rather than a race.
2 Although complainant did not include the flag incident in his formal
complaint, he discussed the incident with the EEO Counselor during the
pre-complaint process. Complainant stated that he was offended by the
inclusion of the word "black" in the instruction he was given. June 19,
2008 Information for Pre-Complaint Counseling, at 1; EEO Counselor's
Report, at 3. The agency addressed the incident in its final decision,
but incorrectly stated that the incident occurred on June 12, 2008.
FAD, at 1.
3 Complainant is a veteran, but we note that the instant complaint
involves allegations of race and reprisal discrimination. Formal
Complaint, at 1; Agency No. 1C-281-0067-05, Administrative Judge's July
18, 2008 Decision (AJ Decision), at 2.
4 Complainant, through the documents submitted on appeal, appears
to argue that an AJ's finding of reprisal discrimination in a prior
complaint bolsters his claims in the instant complaint. Although the
other complaint alleged discrimination based on race and reprisal, among
other bases, we note that the other complaint involved different facts,
different management officials, and different incidents that occurred
in 2005. Agency No. 1C-281-0067-05, AJ Decision. The AJ's decision in
the other case has no bearing on whether complainant stated a claim in
the instant case.
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0120083837
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120083837