0120160464
03-18-2016
Sade M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sade M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160464
Agency No. 4G770015115
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 17, 2015, 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. 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 City Letter Carrier at the Roy Royall Station in Houston, Texas.
On August 20, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (back injury), and reprisal for prior protected EEO activity (Agency No. 4G770020414) when:2
1. On March 14, 2015, the Station Manager ("SM") questioned her as to why she did not deliver eleven Cash On Demand ("COD") parcels the day before; and
2. On March 25, 2015, SM directed one of the Station Supervisors to conduct a partial 3999 route evaluation (street inspection) on her even though such inspections are usually performed by District Office employees.
On March 13, 2015, Complainant was assigned to deliver eleven (11) CODs totaling $1,320.00. Although the CODs all had different addresses, Complainant was instructed by another postal worker to deliver all of them to one individual who would be waiting for them "on the street." Complainant was afraid for her safety at the prospect of carrying so much cash while delivering her route. Complainant informed a supervisor ("S1"), who told Complainant she could leave the CODs and someone else would deliver them. Two men approached Complainant on the street asking about the CODs and Complainant explained that they were at the Post Office. Complainant told S1 about the men, and S1 contacted the Postal Inspection Service. The next day, SM questioned Complainant on why the CODs were not delivered and why the Postal Inspection Service had been contacted. Complainant explained what happened. SM became angry with Complainant, giving her "direct orders" to deliver the CODs. Another postal worker volunteered to deliver the CODs instead, resolving the matter.
On March 25, 2015, SM ordered a supervisor ("S2") to accompany Complainant on her route for a 3399. All mail carriers undergo 3399s in order to "ensure efficiency and service to the public." However, unlike Complainant, the other postal workers received 3399s conducted by route examiners from the Agency's local district office. Complainant alleges SM intentionally sent S2 to conduct the 3399 as a way to harass her on her route.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
ANALYSIS AND FINDINGS
Under EEOC Regulation 29 C.F.R. � 1614.107, an agency shall accept a complaint from an 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 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 (April 21, 1994).
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).
For claims of reprisal, adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual on Retaliation, 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. Hence, reprisal claims are considered "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007)
On appeal, Complainant alleges that SM has been discriminating against her "for a long time." Yet, her complaint consists of only two discrete incidents, neither of which is sufficient for Complainant to establish that she is "aggrieved" or subject to a hostile work environment. As the Agency aptly noted, Complainant ultimately did not have to deliver the CODs and she did not face discipline for not delivering them. We also agree with the Agency's determination that SM acted within her supervisory responsibilities when she ordered S2 to conduct the 3399.
As for Complainant's claims of reprisal, a review of Complainant's prior protected activity shows Complainant previously identified SM as the responsible management official in her earlier EEO complaint (Agency No. 4G770020414). Also, the report of investigation in Agency No. 4G770020414 was issued one day before the alleged discriminatory act in Claim 1 of the instant complaint. However, even considering these connections to the instant complaint and applying a "broad view," we find the record does not support a claim of reprisal.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (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, Director
Office of Federal Operations
March 18, 2016
__________________
Date
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 As of this Decision, Agency No. 4G770020414, is pending review before an Administrative Judge at the EEOC's Houston District Office as EEOC Complaint No. 460201500091X.
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