0120181904
09-18-2018
Ollie L,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ollie L,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120181904
Agency No. 4V-713-0003-16
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 23, 2018, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Automotive Mechanic, PS-08 at the Agency's Vehicle Maintenance Facility in Charlotte, North Carolina.
On April 6, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and harassment on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On December 8, 2017, Complainant learned that his application for Family Medical Leave Act (FMLA) leave for the periods of November 19, 2017 and November 26, 2017, nearly two weeks after the properly entered leave requests were made - was improperly and intentionally altered, manipulated and tampered with and subsequently denied by the supervisor (Supervisor) in an effort by the Supervisor to manipulate his leave to reflect Complainant was out of work in an unprotected leave status which would put him in jeopardy of violating the Agency's leave policy and allow the Supervisor to build a case to discipline and/or fire Complainant which he has been attempting to do.
2. On December 8, 2017, Complainant's time card was removed from its assigned spot and put under a supervisor's watch without advising him, which delayed him in signing in and put him at risk of an unacceptable tardy claim in an effort by the Supervisor to build and contrive a case showing attendance violation issues so that he can discipline or fire Complainant.
3. On December 8, 2017, Complainant's time card and his ability to clock in and not risk losing pay, was held "hostage" on the orders of the Supervisor in an effort to force Complainant to sing falsified, altered, and incorrect leave usage in an effort to build a case of attendance violations, in furtherance of the Supervisor's campaign to discriminate against Complainant and harassing him.
The Agency listed only two claims. The Agency identified claim (1) as listed by Complainant. The Agency then dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(1) for alleging a collateral attack. As for claims (2) and (3), the Agency defined these events as a single claim. The Agency then dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1) finding that Complainant failed to show he was aggrieved by the events raised.
This appeal followed. On appeal, Complainant asserted that claim (1) was improperly defined by a denial of FMLA leave. Instead, Complainant argued that it was part of the Supervisor's plan to place Complainant in an unprotected status regarding his time and attendance. Complainant then argued that the Agency minimized the claims by consolidating them into one event. Complainant requested that the Commission remand the matter to the Agency for further processing. The Agency asked that the Commission affirm its decision.
ANALYSIS AND FINDINGS
The federal regulation set forth under 29 C.F.R. � 1614.107(a)(1) provides 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If a complainant cannot establish that he or she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In claim (1), Complainant claimed that he was denied his FMLA leave request and that the Supervisor manipulated his leave to reflect that he was not in a protected status under FMLA. The proper forum for Complainant to have raised his challenge to his FMLA eligibility was through the Department of Labor's FMLA enforcement procedures. It is inappropriate to now attempt to use the EEO process to collaterally attack actions related to his eligibility for FMLA. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the workers' compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). Therefore, we cannot address Complainant's claim (1) to the extent Complainant has alleged that the Agency's actions were improper under FMLA.
We next turn to claims (2) and (3). Complainant alleged that he was subjected to harassment and discrimination when he his time card was removed from its assigned spot and that it was held hostage by the Supervisor in order to alter his leave usage in an effort to build a case of attendance violations in furtherance of the Supervisor's campaign. We note that Complainant has not asserted that he has been harmed by the Supervisor's action or that he has been issued disciplinary action. At this point, Complainant has only speculated that the Supervisor is building this case. Therefore, we find that Complainant has not shown that the alleged actions raised in claims (2) and (3) caused a harm to a term, condition or privilege of his employment.
We note that Complainant has also asserted that she was subjected to unlawful retaliation for her prior protected activity. Regarding Complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U. S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEOC charge process); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. Complainant has not alleged that the events in claim (2) and (3) might deter him or others from participating in protected EEO activity.
Finally, Complainant argued on appeal that he had been subjected to harassment. 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). We find that Complainant's allegations are insufficient to state a claim of a hostile work environment.
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 decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
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
September 18, 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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