0120161812
10-03-2016
Shanice C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shanice C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120161812
Agency No. 4C170001516
DECISION
Complainant timely appealed to this Commission from the Agency's April 7, 2016 dismissal of 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 the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Part Time Flexible Clerk (GS-6) at the Agency's Nanticoke Post Office facility in Nanticoke, Pennsylvania.
On March 21, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discriminatory harassment on the bases of sex (female) and age (53) when:
1. On November 28, 2015, her supervisor ("S1") swore at her and said he could swear at her whenever he wants;
2. On December 8, 2015, S1 told her he wanted a hug for Christmas;
3. On January 11, 2016, S1 yelled at her; and
4. On or around February 26, 2016, S1 told her that her doctor's note was unacceptable.
Complainant, who typically worked weekends, planned to go on vacation for the week covering Sunday, November 29, 2015 through Sunday December 6, 2015. She was initially denied leave, then S1 and the Postmaster ("P1") verbally assured her that she could take leave, as they would work to find coverage for Complainant's Sunday shifts. The day before Complainant left for vacation, S1 informed her that she would have to work the next two Sundays, when she returned, as well as Christmas Eve and New Year's Eve because her (male) colleague ("C1") was taking the December 6, 2015 shift and he had worked the previous two holidays. Complainant alleges that S1 treats C1 more favorably than her with regard to time off, and that she and C1 should each have been assigned a holiday rather than assigning both to her. Complainant reminded S1 that she worked the previous three holidays. S1 responded that Complainant had volunteered to work those days. Complainant alleges that when she asked S1 why that mattered, he responded "go fuck it," and when she told S1 that he couldn't speak to her that way, alleges he told her he could tell her "go fuck it" any time he wanted. Complainant reported S1's alleged statements to P1, who was S1's supervisor, and P1 assured her he would speak with S1.
However, when Complainant returned, S1 still caused her to feel anxious and uncomfortable. The first day they worked together after the "go fuck it" incident, S1 approached Complainant and made conversation about Christmas shopping. He asked her what she got him and Complainant said "nothing." S1 responded "all I want is a hug" to which Complainant responded "that's not going to happen." Complainant also alleges two instances in January when S1 yelled at her, once for working ten minutes of overtime and again because she did not follow protocol for calling out sick. In February, Complainant had to leave work early and take multiple sick days. When she provided S1 with a doctor's note, she alleges he would not accept it because it did not specify a diagnosis, which was not required under HIPPA regulations. Complainant acknowledges that she was allowed leave for counseling appointments. Complainant alleges she informed P1 of the overtime and yelling and was directed to another management official.
The Agency dismissed Complainant's complaint pursuant to C.F.R. � 1614.107(a)(1), for failure to state a claim.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, 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'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). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
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. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." Following a review of the record, we find that, viewing the allegations together and assuming they occurred as alleged, Complainant fails to state a viable claim of a discriminatory hostile work environment. The actions alleged are simply insufficiently severe or pervasive to state a valid claim. Although Complainant claims to have had to seek medical care as a result of the incident at issue, the Commission has held that allegations that fail to state a claim cannot be converted into a viable claim merely because the complainant requests compensatory damages as a remedy. Ulanoff v. United States Postal Service, EEOC Request No. 05950396 (January 26, 1996); Shrader v. Department of Agriculture, EEOC Appeal No. 01961499 (November 3, 1997).
Complainant also raises a new claim of reprisal on appeal by alleging that as a result of filing the instant EEO complaint, S1 has verbally harassed her, and that Agency management has continually contravened its own workplace policy by failing to stop the alleged harassment. 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). Additionally, agencies have a continuing duty to promote the full realization of equal employment opportunity in its policies and practices. See 29 C.F.R. �1614.101; Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). As Complainant's reprisal claim is not at issue in the complaint before us, it will not be adjudicated in this decision. If she has not done so already, Complainant may raise her new claim of reprisal in a separate complaint by contacting an EEO Counselor pursuant to 29 C.F.R. � 1614.105.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 3, 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.
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