0120140033
03-04-2016
Michell B.,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
Michell B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120140033
Agency No. 4G-335-0110-13
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 8, 2013, 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. Upon review, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's formal EEO complaint for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Northside Station in Saint Petersburg, Florida. On July 10, 2013, Complainant filed a formal complaint alleging discrimination on the bases of sex (female) and national origin (not specified) when she was accused by a colleague in the colleague's EEO complaint of having slept with an Agency manager.
On August 8, 2013, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she has been under stress due to the "vicious and unfounded lies" spread about her. She further contends that it is not easy reporting to work every day knowing her colleagues think that she sleeps around, that she works with management, and that anything said in front of her goes back to Agency leadership. Finally, she contends that this harassment occurs on a daily basis and she believes that she has been subjected to a hostile environment.2 The Agency did not submit contentions on appeal.
ANALYSIS AND FINDINGS
Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of Complainant's employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment of which she complains was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998).
In assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (Mar. 19, 1990); Cobb v. Dep't of the Treas., EEOC Request No. 05970077 (Mar. 13, 1997). Generally, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Kozak v. U.S. Postal Serv., EEOC Request No. 01A63021 (Aug. 23, 2006); Battle v. U.S. Postal Serv., EEOC Request No. 0120083387 (Feb. 4, 2010). The conduct complained of "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and ... that the victim in fact did perceive it to be so." Id.
In the instant case, Complainant has failed to show that she was subjected to discriminatory changes in the terms or conditions of her employment. As noted by the Supreme Court, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms or conditions of employment". Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). The Commission has held that an allegation of a single incident of a harasser coming uncomfortably close to complainant, even combined with other types of harassing behavior, is insufficient to state a claim of harassment. See e.g. Bejar v. Department of Health and Human Services, EEOC Appeal No. 01A20721 (May 10, 2002) (allegation of single incident of "[invasion of] personal space" together with allegations of repeated hostile staring and gesturing insufficient to state a claim of harassment).
In this case, the only specific allegations of harassment involved a single incident when Complainant's colleague, in the colleague's EEO complaint, accused Complainant of sleeping with an Agency manager.3 This incident, even if proven, is not sufficiently severe to establish a claim of harassment. Complaint also generally alleges that the alleged harasser's accusations spawned rumors regarding Complainant's character. The lack of specificity in the allegations as to the frequency and duration of these incidents requires dismissal for failure to state a claim. The Commission has noted that when a harassment claim contains little beyond generalized assertions that are not severe or pervasive enough to constitute harassment, the claim will fail. Monreal v. U.S. Postal Serv., EEOC Appeal No. 01A43828 (Jul. 28, 2005) (noting that complainant's claim of harassment failed because she had not adduced evidence of specific harassing conduct).
CONCLUSION
Based on the foregoing, including any and all contentions submitted on appeal, we find that the Agency's decision to dismiss Complainant's complaint for failure to state a claim was proper. We therefore AFFIRM the Agency's final decision.
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
March 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.
2 We note that in EEOC Appeal No. 0120152796 (Jan. 1, 2016), filed on July 3, 2015, Complainant requested that we consolidate this appeal with EEOC Appeal No. 0120152796. EEOC Regulation 29 C.F.R. � 1614.606 provides that the Commission may, in its discretion, consolidate two or more complaints of discrimination filed by the same Complainant. The Commission exercises its discretion to deny Complainant's request.
3 It is not apparent from the limited record before us how Complainant became aware of the contents of her colleague's EEO complaint. The Agency is reminded that information regarding an employee's EEO activity is to be kept confidential; disclosure of such information may have a chilling effect that discourages other individuals from engaging in EEO activity, and therefore constitute a per se violation of the law. See, e.g., Terrell C. v. U.S. Postal Service, EEOC Appeal No. 0120152271 (Nov. 12, 2015).
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