0120161917
10-13-2016
Shena O.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shena O.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120161917
Agency No. 4E852006616
DECISION
Complainant timely appealed to this Commission from the Agency's May 10, 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 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 Agency's Foothills Station in Albuquerque, New Mexico.
On April 26, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment on the bases of race (Anglo Caucasian), sex (female), color (White), disability (feet, ankles, back injury), and reprisal for prior protected EEO activity (referring coworkers to seek EEO Counseling) when:
1. On or around January 22, 2016, her supervisor, the Manager of Customer Services, ("S1") yelled at her multiple times and told her to get off the workroom floor;
2. On an unspecified date, management failed to properly investigate Complainant's harassment claim on the same matter;
3. On an unspecified date, S1 stated to Complainant that he hates women.
On January 22, 2016, Complainant was running late completing her route for various work-related reasons. She had called and checked in with S1 several times during the day to inform him she would return later than expected. When she arrived back to the post office, she filled out a corrected overtime form for one (1) hour. Complainant alleges that S1 started yelling at her when she brought it to him at his desk and referenced their earlier phone call, which S1 did not seem to remember. Complainant alleges that the yelling escalated as she went on the workroom floor to speak with a coworker. She felt degraded, embarrassed and bullied as she was yelled at in front of her coworkers. She had previously informed S1 she was "off the clock" so he yelled at her to "get off the workroom floor." Complainant alleges she asked S1 not to yell and he ignored her request. After she left, Complainant was so upset that she cried in her car.
On January 23, 2016, Complainant filed a PS Form 1767 (Report of Hazard Unsafe Conditions), requesting that S1 be removed from his position and alleging that S1 subjected her to, among other things, sexual harassment and verbal abuse so that she was "forced to leave work in fear" and "cried all night." Complainant also makes reference to S1's prior alleged statement that he hates women. The PS Form 1767 was forwarded to the Agency's Human Resources Office, which conducted an Initial Management Inquiry. In February 2016, the Agency issued a determination based on the Initial Management Inquiry, finding "no harassment had been demonstrated by [S1]." Complainant's allegation in claim 2 is in reference to the Initial Management Inquiry, which she believes perpetuated a "cover-up" of her allegations. Among other things, Complainant alleges that the Labor Relations Specialist assigned to investigate S1's alleged discriminatory acts was S1's mother in law ("S2"). Complainant also filed a grievance on the matter, which was resolved in March 2016.
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 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).
Claims 1 and 3
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).
Claims 1 and 3, in which S1 allegedly yelled at Complainant in front of her coworkers and at some point in the past, allegedly told Complainant that he "hates women," are isolated incidents of harassment. The Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Serv., EEOC Request No. 05940481 (Feb. 16, 1995). Moreover, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. United States Postal Serv., EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal Serv., EEOC Request No.05940695 (Feb. 9, 1995). We find Claims 1 and 3 do not rise to the level of an actionable claim.
Claim 2
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 Defense. EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Linead v. United States Postal Serv., EEOC Request No. 05930106 (June 25, 1993). "A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the unemployment compensation process, or the workers' compensation process. See, e.g. Shibel v. Dep't of the Navy, EEOC Appeal No. 01987064 (Aug. 12, 1999) (finding an allegation that complainant was harassed when he was denied immediate access to a union official during the filing of his union grievance failed to state a claim because the allegations constituted a collateral attack on the grievance process and involved actions inextricably intertwined with the processing and administration of appellant's grievance, outside EEOC jurisdiction); Fisher v. Dep't of Defense, EEOC Request No. 05931059 (Jul. 15, 1994).
Claim 2 constitutes a collateral attack on another administrative process and therefore fails to state a claim. On appeal, Complainant repeatedly alleges dissatisfaction with the processing and results of the Initial Management Inquiry. We remind Complainant that the Initial Management Inquiry is an administrative process conducted by Human Resources. The proper venue for Complainant to raise these concerns is with Agency management, not this Commission. We note that the EEO Counselor interviewed both S1 and S2 during the pre-complaint inquiry. Despite Complainant's insistence that a "proper investigation" would reveal harassment, the allegations in Claims 1 and 3 do not rise to the requisite severity or pervasiveness to warrant one.
Finally, although Complainant claims to have suffered damages, including loss of sleep, depression and anxiety 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 Serv., EEOC Request No. 05950396 (Jan. 26, 1996); Shrader v. Dep't of Agriculture, EEOC Appeal No. 01961499 (Nov. 3, 1997).
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 13, 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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