0120090433
06-11-2010
Ronald Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Ronald Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120090433
Agency No. 1K-291-0027-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 15, 2008, 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
Complainant, a Review Clerk at the agency's Columbia Processing &
Distribution Center in West Columbia, South Carolina, alleged that he
was subjected to discrimination on the bases of race (African American),
sex (male), color (unspecified), and disability (back) when:
1. on July 18 and 21, 2008, based on his sex and disability he was removed
from his bid position while two junior employees were available; and
2. on September 18, 2008, based on his race, color and sex, a coworker
made a racial comment.1
The agency dismissed claim 1, asserting that, in accordance with 29
C.F.R. 1614 107 (a) (1), this claim stated the same claim that had
been pending before or had been decided by the agency or Commission.
The agency alleged that complainant had raised the exact same claim except
with different dates in agency case no. 1K-291-0017-07. In that case,
complainant alleged that he was subjected to discrimination based on
his sex when on May 16 and 22, 2007, and June 5 and 15, 2007, he was
moved from his job assignment while there were employees junior to him
who were available. The agency noted that, in that case, complainant
failed to proceed after issuance of the Notice of the Right to File,
and so the case was closed on September 1, 2007, at the informal stage.
The agency now argues that, because these matters are the same as
previously raised, this complaint should be dismissed for stating
the same claim. The agency also maintains that this case should be
dismissed for failure to state a claim, as complainant is lodging a
collateral attack on the proceedings of another forum; specifically,
the negotiated grievance process. The agency asserts that complainant
should have addressed his concerns about seniority through the negotiated
grievance process.
With regard to claim 2, complainant alleges that he asked a coworker,
"What's up?" and the coworker replied, "Nothing, they got all them black
people over there in 044," and further stated, "I'm gonna let them work
the damn mail." Complainant maintains that this person had a history
of racial comments. The agency found however, that complainant did not
tell management about this comment. Further, the agency indicated that
complainant failed to show how he was aggrieved by this comment. The
agency found that complainant failed to establish a claim of harassment
because the totality of his claim was not sufficiently severe or pervasive
to create a discriminatory hostile or abusive working environment.
Moreover, because complainant had not communicated this incident to
agency management, liability for failure to act could not be imputed to
the agency. Therefore, the agency dismissed this complaint for failure
to state a claim in accordance with 29 C.F.R. 1614.107 (a)(1).
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency moves his bid assignment
out of retaliation.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No 01955890
(April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April
24, 1997).
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 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.
Further, a complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the complainant cannot prove a set
of facts in support of the claim which would entitle the complainant
to relief. The trier of fact must consider all of the alleged harassing
incidents and remarks, and considering them together in the light most
favorable to the complainant, determine whether they are sufficient
to state a claim. Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997).
In the instant case, we find that claim 1 was improperly dismissed as a
claim that had been previously stated. First, we note that the claims
are not identical. We find that different dates and an additional basis
are alleged in the current fact pattern. Further, complainant argues that
this matter has occurred on several occasions and is an ongoing problem.
He believes it is being done as an act of retaliation. Therefore, the
Commission finds that the claim is not identical to a previous or pending
claim and should not have been dismissed. We also find that claim 1
states a claim. A fair reading of the record reveals that complainant
is alleging that based on his sex, disability, and retaliation he is
being moved from his bid.
With respect to claim 2, however, the Commission finds that the agency
correctly dismissed this claim for failure to state a claim, as the
incidents complained of are not severe or pervasive enough to establish
a hostile work environment.
CONCLUSION
Based on a review of the record, the Commission REVERSES in part and
AFFIRMS in part the agency's decision. Specifically, the agency's
decision to dismiss claim 1 was improper and is REVERSED. Claim 1 is
REMANDED to the agency for further processing in accordance with the
ORDER below. The Commission AFFIRMS the agency's dismissal of Claim 2.
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 (K1208)
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 77960, Washington,
DC 20013. 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 (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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
June 11, 2010
Date
1 This claim was added in an amendment to complainant's complaint.
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0120090433
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090433