0120091707
06-17-2010
Roberto Ifill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Roberto Ifill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120091707
Agency No. 1K221000309
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 26, 2009, 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.
In his complaint, Complainant alleged that he was subjected to
discrimination on the basis of national origin (Panama) when on October
16, 2008, his manager accused him of assaulting another employee and
attempted to coerce him into writing a statement.
In its final decision, the Agency dismissed the above claim on the grounds
that it failed to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
On appeal, Complainant contends that the Agency improperly dismissed his
complaint. Complainant maintains that a convicted felon deliberately
misled management by falsely accusing Complainant of assaulting him
on two occasions. Complainant argues that the Agency should be held
vicariously libel for the accuser's actions because management relied upon
his misrepresentations and knew that the accuser was lying. Complainant
further alleges that on January 12, 2009, the Agency retaliated against
him by placing him in off-duty status without pay and escorting him out
of the office. Complainant also maintains that the agency retaliated
against him on January 17, 2009 when it issued him a letter of warning.
The Agency requests that we affirm its final decision.
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 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).
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
employee'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 employee 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.
In this case, Complainant alleges that the Agency subjected him to
discrimination and harassment when he was ordered to go to the Manager's
office, where the Manager accused him of assaulting an employee and told
him that he must write a statement regarding the matter. Complainant
maintains that management failed to properly investigate the assault
allegations made against him, and he refused to write a statement.
Upon review, we find that the alleged events are not sufficiently
severe or pervasive to state a claim of harassment. Further, we find
that the alleged events do not involve sufficient harm or loss to the
conditions, privileges, or terms of Complainant's employment to render
him aggrieved.
On appeal, Complainant raises for the first time the claim that the
agency placed him on off-duty status and issued him a letter of warning
in January 2009. However, Complainant did not include these matters
in the instant EEO complaint or amend the complaint to include these
alleged actions. Complainant cannot introduce these claims on appeal.
Consequently, we find that the Agency properly dismissed Complainant's
complaint for failure to state a claim.
Accordingly, the Commission AFFIRMS the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the
Court 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
_6/17/10_________________
Date
2
0120091707
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091707