0120110113
12-02-2011
Roderick D. Turner, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Roderick D. Turner,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120110113
Agency No. 1G-753-0059-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 20, 2010, 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
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail handler at the Agency’s Processing and Distribution Center
facility in Dallas, Texas. On August 6, 2010, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on the
bases of race (African-American), sex (male), disability (depression),
and reprisal for prior protected EEO activity when, from March 2010 and
ongoing, he has been subjected to a hostile work environment created by
his manager (Manager).
Complainant indicated that the Manager had subjected him to harassment.
In support of his claim of harassment, Complainant indicated that the
Manager charged him with Absent Without Leave (AWOL) instead of leave
under the Family Medical Leave Act (FMLA). Complainant also indicated
that the Manager refused to identify himself correctly as a management
official; assigned Complainant to work outside of his craft as a Mail
handler, and instructed Complainant to work outside of his bid area.
Complainant also claimed that the Manager would speak to him in a
rude manner when giving orders. Finally, Complainant indicated that
the Manager refused Complainant’s request for a union official in a
timely manner.
The Agency dismissed Complainant’s claim of harassment pursuant to
29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency
noted that certain aspects of Complainant’s claim of harassment should
be dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for they are not
properly raised in the EEO complaint process. Specifically, the Agency
indicated that Complainant was using the EEO process as a collateral
attack on FMLA and union issues. Further, the Agency held that the
remaining events raised in support of Complainant’s claim of harassment
were not severe or pervasive enough to state a claim of harassment.
Therefore, the Agency issued its final decision dismissing the complaint.
This appeal followed without specific comment by Complainant. The Agency
requested that the Commission affirm its decision to dismiss the
complaint.
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).
We note that the Agency properly found that Complainant has raised
events which should have been alleged in the EEO complaint process.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman
v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994);
Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
The proper forum for Complainant to have raised his challenges to the
Agency’s decision regarding FMLA is with the Department of Labor, not
the EEO process. Further, Complainant cannot raise a claim regarding the
Agency’s failure to provide union representation in a timely manner.
That claim should be raised with the Union. It is inappropriate to now
attempt to use the EEO process to collaterally attack actions regarding
Union representation or FMLA. Therefore, the Commission cannot consider
these events as support of Complainant’s claim of harassment.
Complainant alleged that the Manager created a hostile work environment.
He asserted that the Manager would assign him work outside of his
bid position and outside of his craft. Complainant indicated that the
Manager would speak in a rude manner and use “strong body language”.
In addition, Complainant asserted that the Manager refused to identify
himself as the responsible management official.
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). The Commission finds
that Complainant’s allegations, even if proven true, are insufficient
to state a viable claim of a hostile work environment.
We note that Complainant also alleged that he was subjected to harassment
based on his protected EEO 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.
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.
Here, Complainant has not asserted that the alleged harassment would
reasonably deter him or others from engaging in protected activity.
Therefore, we determine that Complainant failed to state a claim of a
hostile work environment.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
December 2, 2011
__________________
Date
2
0120110113
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110113