[Redacted], Marvella B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionNov 8, 2021Appeal No. 2021004463 (E.E.O.C. Nov. 8, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marvella B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004463 Agency No. 1C-102-0001-21 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated June 30, 2021, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an Equipment Operator at the Agency’s Morgan General Mail Facility in New York, New York. On May 27, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (sexual orientation) 2 when: 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 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2 2021004463 1. Since Complainant stepped down as an acting supervisor in September 2020, Complainant’s Supervisor (S1) would come around to Complainant’s section and instruct her to perform work beyond her assigned duties and when Complainant refused, S1 wanted to send Complainant to different sections; and 2. On February 17, 2021, Complainant was instructed to go to a different section and then given a Pre-Disciplinary Interview (PDI) for failure to follow instructions. On June 30, 2021, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a) for failure to state a claim. The Agency reasoned that the alleged incidents were not adverse actions, but rather regular workplace occurrences. Further, the events were not sufficiently severe or pervasive to state a claim of unlawful discriminatory harassment. The instant appeal followed. Complainant presents no contentions on appeal. ANALYSIS AND FINDINGS 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 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 (Apr. 21, 1994). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. 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 a 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. With respect to claim 1, Complainant has failed to allege that she suffered a loss or harm to a term, condition, or privilege of her employment. As noted above, Complainant contends that S1 attempted to assign her work outside of her duties and, when Complainant refused, S1 tried to move her to a different section. 3 2021004463 The Commission has stated that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). Similarly, in claim 2, Complainant alleges that she was discriminatorily issued a Pre-Disciplinary Interview for failure to follow instructions. However, the Commission has previously held that, absent a personnel action that creates an actual harm or change in the terms and conditions of employment, a preliminary step to taking such a personnel action is not sufficient to render an employee aggrieved. See Diaz v. Dep’t of the Air Force, EEOC Appeal No. 05931049 (April 21, 1994). Here, Complainant has not asserted that the PDI was followed by any adverse action. To the extent that Complainant alleges that the events in the complaint state a claim of harassment, we disagree. The Commission has long held that allegations describing “common workplace occurrences,” such as routine work assignments, instructions, and admonishments, do not rise to the level of hostility necessary to constitute harassment. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Even if done in a confrontational manner, a supervisor assigning work duties or questioning an employee about their work duties is a “common workplace occurrence.” See Carver v. U.S. Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). The statutes under the Commission’s jurisdiction do not protect an employee against adverse treatment due simply to a supervisor’s personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). We find that Complainant has not described events which, even if proven true and considered together, are sufficient to state a claim of harassment. See Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997) CONCLUSION The Agency’s final decision dismissing the formal complaint for failure to state a claim is hereby AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 4 2021004463 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 5 2021004463 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 November 8, 2021 Date Copy with citationCopy as parenthetical citation