0120150860
04-06-2016
Philip H.,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
Philip H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120150860
Agency No. 4G330030414
DECISION
Complainant timely appealed to this Commission from the Agency's decision dated November 26, 2014, 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 a Clerk (PS-06) at the Agency's Cutler Bay Post Office in Cutler Bay, Florida.
On November 13, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discriminatory harassment on the basis of sex (Male) when:
1. On August 11 and 12, 2014, he was verbally reprimanded by his supervisor ("S1") even though she gave contradictory instructions; and
2. On September 8, 2014, S1 instructed him to complete a Stamps-By-Fax order, a task outside the responsibilities of a T-7.
During the relevant dates, Complainant was scheduled as a T-7; which involved collecting PS1412 Forms with funds from the window clerks throughout the day, then verifying the amount of money collected against the amount entered on the individual forms, for the daily financial report ("closeout"). On August 11th Complainant counted the PS1412s and the money but skipped the verification part of the process, alleging that there was a long line and the office was short staffed at that time. S1 verbally reprimanded Complainant and told him he must verify each amount. The next day, August 12th Complainant gathered the PS1412s and funds and was verifying the amounts, per S1's request, when she verbally reprimanded him again, telling him there was a long line of customers, which took priority and that she would complete verification. Complainant alleges that S1 never reprimanded the other T-7 Clerk, a woman, for contradictory instructions, nor had she been ordered to complete a Stamps-By-Fax order as he was on September 8, 2014.
The Agency properly dismissed Complainant's claim, for failing to show he was an "aggrieved employee" in accordance with 29 C.F.R � 1614.107(a)(1).
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994) If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1)
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 is not aggrieved by either of the claims in the complaint and he has not presented persuasive evidence so that the complaint, when taken as a whole, states a claim of harassment.
On Appeal, Complainant attempts to support his argument that he is aggrieved by raising a new claim of reprisal. Specifically, he alleges that as a result of filing the instant EEO complaint, he was relocated to a different post office and no longer granted overtime hours even though overtime hours are available. Under Commission policy, 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) Agencies also have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. See 29 C.F.R. �1614.101; Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) However, Complainant's reprisal claim is not at issue in the complaint before us, so it will not be adjudicated in this decision. If he has not done so already, Complainant may raise his new claim of reprisal in a separate complaint by contacting an EEO Counselor pursuant to 29 C.F.R. � 1614.105.
CONCLUSION
Accordingly, the Agency's final decision to dismiss Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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
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, Director
Office of Federal Operations
April 6, 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.
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