0120181455
07-03-2018
Stefan C,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stefan C,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120181455
Agency No. 1F94600318
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's February 15, 2018, dismissal of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer Operator (PS-08) at the Agency's Processing and Distribution Center in Oakland, California.
On January 20, 2018, Complainant filed a formal complaint alleging that he had been subjected to discriminatory harassment by the Agency on the basis2 of reprisal for prior protected EEO activity when:
1. On August 27, 2017, a Supervisor, Distribution Operations ("S1") accused Complainant of interrupting the work of his employee, and
2. On August 27, 2017, S1 threatened to call the Postal Police to have Complainant escorted from the premises.
By Complainant's account, on August 27, 2018, he saw a coworker ("C1") in passing while on the way to the restroom, and they exchanged greetings. Complainant proceeded toward the restroom and heard S1 loudly yelling at him from a distance, stating that Complainant "was holding his employee up and [Complainant had] no right to be there." S1 went to the dispatch room to notify Complainant's supervisor ("S2"). Believing S1 would "manipulate the story" of what occurred, Complainant followed him. In the office, S1 picked up the phone and informed Complainant he was calling Agency police. S1 then changed his mind and returned to his unit. Complainant notified S2 that S1 continued to harass him and make him feel unsafe, then left for the remainder of his shift, due to stress from the incident with S1.
Complainant previously identified S1 as the responding management official ("RMO") in another EEO complaint ("Complaint 1"), which is currently pending a hearing before an EEOC Administrative Judge ("AJ").3 Complaint 1 alleged discrimination on the bases of race, nationality, and religion when, on December 15, 2016, S1, who was not Complainant's supervisor, issued him a notice for a fourteen-day suspension for failure to follow his orders. S1 became aware that he was the named RMO in Complaint 1 no later than July 6, 2017, when he provided the Agency's EEO Investigator with affidavit testimony for the record. At the time of the alleged actions in the instant complaint, the matter was still pending investigation, as Complainant did not submit his hearing request until September 11, 2017.
The Agency dismissed Complainant's complaint, finding that it failed to state a claim, in accordance with 29 C.F.R. � 1614.107(a)(1), as it did not meet the requisite level of severity to constitute harassment.
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).
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, a claim of harassment may survive if the alleged conduct is so severe or pervasive as to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Similarly, the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See Taylor v. United States Postal Serv., EEOC Appeal No. 0120060151 (Jun. 6, 2007) citing EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; and Carroll, supra; see also Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007), Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999).
However, even applying the above standards, Complainant's allegations fail to state a claim. The alleged discriminatory actions occurred within a single day, likely in under an hour. Complainant did not incur any harm that would alter the conditions of his employment. For instance, Complainant was not disciplined for speaking with an employee from S1's unit, and while it was understandably stressful for Complainant when S1 picked up the phone and threatened to call Agency police, the police were never called. Therefore, Complainant's allegations are not sufficiently severe or pervasive to constitute harassment, nor are they reasonably likely to deter Complainant or others from engaging in protected activity.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
July 3, 2018
__________________
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 Complainant's Formal Complaint included the additional bases of race (Indian), national origin (India), and religion (Sikh), however, on appeal, he alleged discrimination based on reprisal only.
3 EEOC Hearing No. 550201700581X (Agency Case No. 1F946001517).
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