01a50872
03-09-2005
Robert L. Swart, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Robert L. Swart v. United States Postal Service
01A50872
March 9, 2005
.
Robert L. Swart,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 01A50872
Agency No. 1A-126-0014-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 8, 2004, 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (Caucasian), sex (male), color
(White), age (D.O.B. 04/22/50), and in reprisal for prior EEO activity
(filing EEO Complaint No. 1A-126-0003-03) when:
A derogatory remark was made against veterans in his presence;
He received a proposed letter of warning (LOW) instead of a seven day
time-served suspension;
A black female co-worker received a spot award;
A black female co-worker received a detail assignment;
Area Manager of Human Resources harassed him, and
Human Resources Specialist harassed him.
The agency procedurally dismissed the claims on various grounds. First,
with regard to claims (1), (2), (5) and (6), the agency found that
complainant had not proven that he was aggrieved by the alleged actions,
and as such he failed to state an actionable claim. Specifically, the
agency explained that claim (1) failed because such a remark unaccompanied
by concrete action against is not a direct and personal deprivation
sufficient to render an individual aggrieved; claim (2) failed because
a proposed personnel action cannot render an employee aggrieved; and
claims (5) and (6) failed because complainant did not indicate just how
management allegedly harassed him, thus not showing that the harassment
was patterned, pervasive or severe. Furthermore, the agency argued
that these last two claims necessarily fail because they had never been
raised before the EEO Counselor. Second, with regard to claims (3) and
(4), the agency found that complainant had failed to raise these matters
with the EEOC Counselor in a timely manner, and failed to specify with
precision how he suffered any loss or harm with respect to a term or
condition of employment. Third, with regard to the retaliation claim,
the agency found he had not stated an actionable claim.
Analysis and Findings
Under EEOC regulations, 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.
See 29 C.F.R. �� 1614.103, 106(a) (2004). The Commission's federal
sector case precedent has long found an �aggrieved employee�to be one
who �has suffered direct and personal deprivation at the hands of the
employer.� Gilyard v. Dep't of Energy, Appeal No. 01A01550 (June 9,
2003) (citing Hobson v. Dep't of the Navy, EEOC Request No. 05891133
(Mar. 2, 1990)); see also Diaz v. Dep't of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994) (defining 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.)
Claim (1)
The agency is correct to conclude that complainant failed to prove that
he had been aggrieved by the alleged actions. The Commission finds
that complainant did not demonstrate that the derogatory statement
(�You're talking to the wrong person about veterans. I have no use for
veterans.�) resulted in a harm or loss affecting a term, condition, or
privilege of his employment. Moreover, as the agency correctly pointed
out, the Commission has consistently found that remarks or comments
unaccompanied by a concrete agency action usually are not a direct
and personal deprivation sufficient to render an individual aggrieved
under Title VII. See Backo v. United States Postal Serv., EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Serv., EEOC
Request No. 05940695 (Feb. 9, 1995). Therefore, the claim is dismissed
for failure to state a claim.
Claims (2), (5) and (6)
Harassment claims (2), (5) and (6) also fail for the same reason.
The agency is somewhat mistaken in its reasoning � the issuance of a
proposed LOW in lieu of a seven day time-served suspension by itself
is insufficient to state a claim of harassment. See Mugg v.EEOC, EEOC
Appeal No. 01A32700 (July 13, 2004) (citing Cobb v. Dep't of Treasury,
EEOC Request No. 05970077 (Mar. 13, 1997). However, as complainant
raises other allegations of harassment based on prior EEO activity,
we must analyze the claims together.
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, religion, or prior
EEO activity is unlawful. See McKinney v. Dole, 765 F.2d 1129, 1138-39
(D.C. Cir. 1985). When alleging harassment, a complainant must show that
the conduct at issue was both (1) motivated by a protected factor; and (2)
sufficiently severe or pervasive to alter the conditions of his employment
and create an abusive and hostile working environment. See Meritor
Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986). This standard requires
an objectively hostile or abusive environment - one that a reasonable
person would find hostile or abusive - as well as an abusive environment
as subjectively perceived by the victim. See Harris v. Forklift Sys.,
Inc. 510 U.S. 17, 23 (1993). Whether an environment is hostile or
abusive can be determined only by looking at all the circumstances, which
may include the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. See id. A single incident or group of isolated
incidents will not be regarded as discriminatory harassment unless the
conduct is severe. See Walker v. Ford Motor Co., 684 F.2d 1355, 1358
(11th Cir. 1982).
The Commission agrees with the agency's assessment of complainant's
claims. Complainant fails to show that the alleged harassment was
motivated by a protected factor, and that it was sufficiently severe or
pervasive so as to alter the conditions of his employment and create an
abusive and hostile working environment. Receipt of the proposed LOW
is an isolated incident of harassment. The Commission has repeatedly
found that a claim of an isolated incident of alleged harassment usually
is not sufficient to state a harassment claim. See Phillips v. Dep't
of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks
v. Health & Human Servs., EEOC Request No. 05940481 (Feb, 16, 1995).
Similarly with regard to claims (5) and (6), the fact that complainant
failed to specify how and when this harassment took place is fatal as
he provided no evidence to show that the harassment was sufficiently
severe or pervasive to alter the conditions of his employment.
Claim (3)
With regard to claim (3), the Commission also agrees with the agency
that the claim must be dismissed pursuant to 29 C.F.R. � 1614.105, which
states that �an aggrieved person must initiate contact with a Counselor
within 45 days of the date of the matter alleged to be discriminatory or,
in the case of personnel action, within 45 days of the effective date
of the action.� In his complaint, complainant failed to indicate when
his African-American female co-worker received the award instead of him.
However, in the Counselor's Report complainant explains that in September
2003 he was promised a spot award or a �far exceeds� rating. The Report
says nothing about the specific allegation stated in the complaint.
Nevertheless, the Report states that the date of the alleged incidents
was September 1, 2003. Assuming that is the correct date, the claim was
untimely raised before an EEO Counselor because he initially contacted
the Counselor on December 19, 2003 - more than thirty days beyond the
permissible forty-five day period.
Claim (4)
The Commission finds that the agency erroneously dismissed this
claim pursuant to sections 1614.105(a)(1) and 1614.106(c) of the EEOC
Regulations. The Commission finds that complainant raised this claim
in a timely manner<1>, and that although not specifically explained
in the complaint, complainant had sufficiently described the incident
to the Counselor. See Counselor's Report, at 1. The Commission also
finds that the claim � denial of a detail assignment which was given to
an employee not in his protected class � does state a claim because it
affects a term, condition and privilege of employment. The Commission,
therefore, remands claim (4) back to the agency, and directs it to
process the claim in accordance with the Order below.
ORDER
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 9, 2005
__________________
Date
1 The Counselor's Report explains that in late April 2004 another
employee received the FLSA/TACS detail. The Commission assumes this
detail to be the one complainant denounces. As complainant first
contacted an EEO Counselor on December 19, 2003, and the matter had been
raised to Counselor, the Commission finds this claim to be timely.