0120162499
11-22-2016
Shelton D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shelton D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120162499
Agency No. 1K204000516
DECISION
Complainant timely appealed to this Commission from the Agency's June 27, 2016 dismissal of his complaint of unlawful employment discrimination in violation of 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 Supervisor for Maintenance Operations at the Agency's Network and Distribution Center in Washington, D.C. ("the Washington NDC").
On June 7, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age (64) when:
1. On January 20, 2016 Complainant's first level supervisor, a Maintenance Operations Manager ("S1"), issued Complainant a Proposed Letter of Warning ("PLW") dated January 14, 2016, charging him with unacceptable work performance; and
2. On or around May 13, 2016, Complainant's second level supervisor, the Maintenance Manager for the Washington NDC ("S2"), stated in a "threatening" manner after a morning equipment turnover meeting, "see, no one's retiring yet, [Complainant's name]."
Complainant alleges that the Proposed Letter of Warning ("PLW") in Claim 1 was used as a device to single him out and intimidate him into retirement, or, alternately undermine and discredit his work to make it easier remove Complainant from his position and replace him with a younger employee. Likewise, the tone of S2's voice when he made the retirement comment described in Claim 2 indicated to Complainant that the comment was meant to intimidate him by singling him out among his peers and pressure him into retiring.
We note that the Agency only accepted and referenced Claim 1 in its Final Decision, yet Complainant raised five allegations in his formal complaint, all of which had been raised with an EEO counselor prior to receiving the Notice of Right to File, in accordance with our regulations. As the record supports Complainant's framing of his complaint as a harassment allegation, we have added the allegation in Claim 2 from his formal complaint. We find the remaining three claims in Complainant's formal complaint do not state any new claims, but rather, argue in support of the alleged discriminatory nature of the PLW in Claim 1. Specifically, Complainant asserts that the PLW was unwarranted and only meant to single him out and discredit his work. Complainant further argues that (to his knowledge), no other supervisor at the Washington NDC was issued a PLW, and the subject of his PLW, low employee attendance, was a problem for all supervisors, not just Complainant. Complainant also alleges that the PLW was not issued in accordance with the Agency's internal policy for addressing unsatisfactory performance, which requires a discussion or formal evaluation prior to the issuance of a PLW.
The Agency accepted Claim 1 of Complainant's Formal Complaint only, which it dismissed pursuant to 29 C.F.R. � 1614.107(a)(5), because the PLW was a "proposed" personnel action.
ANALYSIS AND FINDINGS
Our regulations provide that 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If a complainant cannot establish that he or she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
Under 29 C.F.R. � 1614.107(a)(5), an Agency shall dismiss a complaint alleging that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. This is because a "proposed" personnel action will not cause a direct and personal deprivation sufficient to render a complainant "aggrieved" under our regulations, unless it is accompanied by a concrete action. See Martin v. Dep't of the Treasury, EEOC Appeal No. 01A11050 (Feb. 27, 2001). An accompanying "concrete action," such as evidence that the proposed action was carried out or that the proposal was added to Complainant's employee record, is necessary to cause a "proposed" personnel action to render a complainant aggrieved. See Reed v. Dep't of the Air Force, EEOC Appeal No. 01A24387 (Feb.19, 2003); Sarven v. United States Postal Serv., EEOC Appeal No. 01A30103 (Feb. 11, 2003). Accordingly, the Agency dismissed the instant complaint pursuant to 29 C.F.R. � 1614.107(a)(5), noting that there was no evidence in the record to indicate that Proposed Letter of Warning ("PLW") resulted in a concrete action that could render Complainant "aggrieved" for purposes of stating a claim.
Complainant argues, and the record supports that the Agency erroneously reviewed Claim 1 as a discrete act of discrimination as opposed to one instance in an ongoing harassment claim. Hence, we find a dismissal on the grounds that the PLW was a "proposed" action, pursuant to 29 C.F.R. � 1614.107(a)(5) improper. Where, as here, a proposed Agency action is purportedly combined with other acts of harassment to form a pattern of alleged harassment, an agency may not properly dismiss it on the grounds that it alleges that a proposed action is discriminatory. See Settles v. United States Postal Serv., EEOC Request No. 05970496 (Apr. 8, 1999). Complainant indicates on appeal, and throughout the record, that he has been subjected to ongoing harassment. We find that the dismissal of Claim 1 as a "proposed" action was not appropriate because it must be reviewed within the context of Complainant's other harassment allegations, here, Claim 2. Sonkwa v. Dep't of Defense, EEOC Appeal No. 0120133093 (Jan.16, 2014).
After thorough review, we find that Complainant has not presented persuasive evidence so that the complaint, even when taken as a whole, states a claim of harassment. 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. To the extent that complainant is alleging that S2's remark about Complainant's retirement during the May 2016 meeting constituted harassment, this Commission had found that unless the alleged conduct is severe, a single incident or group of isolated incidents will not usually be regarded as a claim of discriminatory harassment. Harris, supra. While Complainant alludes to repeated instances of unsolicited comments about his retirement from S1 and S2, his only stated claims concern the PLW and S2's remark during the May 2016 meeting. Complainant is describing two isolated incidents, that considering the lack of concrete action accompanying either incident, and the months between the incidents, are not as severe or pervasive as to state a claim of harassment.
On appeal, Complainant attempts to raise additional claims of harassment, alleging that since November 6, 2015, S1 has made it impossible for him to effectively do his job by denying him access to the stock room and computer room. There is no indication in the record that Complainant raised these claims with an EEO Counselor prior to this appeal. As these claims are not at issue in the complaint before us, and will not be adjudicated in this decision. If complainant wishes to pursue a separate complaint on these new claims, then he must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
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
November 22, 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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