0120181236
06-26-2018
Natacha M,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Natacha M,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120181236
Agency No. 1F946000118
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (Dismissal) dated February 7, 2018, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a General Clerk, PS-7, at the Agency's Processing and Distribution Center facility in Oakland, California. On January 11, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Human Race), sex (female), color (Brown), disability (unspecified), age (61), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On October 11, 2017, Complainant was harassed about updating the weekly schedule.
The Agency dismissed the claim for failure to state a claim, finding that Complainant was not aggrieved, that the alleged actions were not the type of actions that would reasonably deter an individual from engaging in protected activity, and that the actions complained of were insufficiently severe and/or pervasive to constitute harassment.
ANALYSIS AND FINDINGS
The Agency found that Complainant alleged that on the date in question, the Acting Manager Distribution Operations (A/MDO) instructed Complainant to update the weekly schedule, informing Complainant that she would return at 6:00 AM to provide Complainant with the updated schedule. However, A/MDO did not provide Complainant with the updated information until 6:20 AM and still wanted the changes completed by the end of Complainant's 7:30 AM tour. Complainant informed her that she did not have enough time to complete the changes. On appeal, Complainant maintains that such a characterization of her complaint is incorrect and that:
It was not a 'weekly schedule', it was the Holiday Detail. AMDO . . . NEVER provided anything to the complainant - myself - never attempted to start anything because I was never given anything to start nor completed [sic]. I left work when my shift ended and is why I put this issue in writing by emailing Staff.
On appeal, Complainant provides documentation about a dispute she had with management in 2015, which was addressed in a prior complaint. See Complainant v USPS, EEOC Appeal No. 0120160008 (February 4, 2016). Complainant also included an email dated March 3, 2018, after the Dismissal was issued, which indicates that Complainant had a dispute with AMDO over, among other things, whether or not AMDO had supervisory authority over Complainant. We note that, assuming for the sake of argument that the Agency mischaracterized her complaint, Complainant has not explained exactly what the nature of her complaint is, nor has she included copies of any emails she sent to staff detailing "this issue." We further note that in her formal complaint, Complainant again did not specifically explain her complaint but instead wrote that the statement from AMDO to the EEO Counselor was untrue. Complainant further stated her complaint was "as stated initially." A review of the informal complaint shows that Complainant's complaint was characterized as follows: "Complainant alleges that: 1) on 10/11/2017, she was harassed and verbally abused regarding updating the weekly schedule."
Because Complainant has not explained what issue she put in writing by emailing staff, because the March 2018 email occurred after the Decision was issued, and finally, because Complainant said in her formal complaint that her complaint was "as stated initially," meaning, presumably, as stated in the informal complaint, we find that the dismissal's characterization of the complaint is essentially correct and that minor differences such as whether or not the document was a Holiday Detail or a weekly schedule are irrelevant for purposes of determining whether or not Complainant has stated a valid claim.
We note that 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 regards to claims alleging reprisal, the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998).
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 Complainant has failed to state a claim. We find that the actions complained did not cause Complainant to incur a harm or loss and she is therefore not an aggrieved individual. We further find that Complainant does not state a claim of reprisal because being instructed to complete a weekly schedule or a holiday detail is not the type of action that is likely to deter Complainant or others from engaging in protected EEO activity. Finally, we find that Complainant fails to state a claim of harassment because the actions complained of are insufficiently severe and/or pervasive to alter the conditions of Complainant's employment.
CONCLUSION
The Agency's dismissal is AFFIRMED.
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 26, 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.
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