0120161227
06-28-2016
Tod P.,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
Tod P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120161227
Agency No. 1K221000316
DECISION
Complainant timely appealed to this Commission from the Agency's January 19, 2016 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 Registry Clerk (PS-06) at the Agency's Processing and Distribution Center in Merrifield, Virginia.
On December 9, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), color (Black), and reprisal (EEOC Appeal No. 0120141617) when:
1. On November 5, 2015, the Supervisor of Distribution Operations ("S1") pulled him off his bid position in the registry section and assigned him to work in the manual letters section; and
2. On November 6, 2015, S1 ordered him to report to the special function room in order to have a discussion, reassigned him to work other than his bid position in the registry, and issued him a letter of warning.
On November 5, 2015, Complainant alleges S1 claimed he was "doing nothing" and ordered him to leave his bid position in the registry and report to manual letters. The next day, Complainant met with S1 and they discussed his reassignment. Despite Complainant's allegation, S1 denies issuing a letter of warning to Complainant. The Agency's protocol for moving employees off of their assigned bid positions when additional support is needed elsewhere is based on a "pecking order" and seniority. First the postal support employees ("PSEs") are to be reassigned. If none are available or qualified for the position, full-time regular clerks may volunteer for reassignment. Otherwise, full-time regular clerks may be reassigned, and after that, full-time regular employees. S1 stated that he followed Agency protocol when he reassigned Complainant. There were no available PSEs or volunteer clerks. Complainant, a full-time clerk, had the least amount of seniority among the other employees assigned to the register cage. Complainant argues that S1 acted out of reprisal because he filed a similar complaint in December 2013, naming S1 as the responsible management official.
On January 11, 2016, the Agency issued a partial acceptance/partial dismissal of Complainant's claim, in which it dismissed Claim 1 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, but accepted Claim 2 for investigation. The Agency found no evidence that a personnel action had occurred.
On January 19, 2016, the Agency issued a final decision superseding its January 11, 2016 determination and dismissing both of Complainant's claims pursuant to 29 C.F.R. 1614 107(a).
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 (April 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 stated that 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) Instead, claims based on statutory retaliation clauses are reviewed "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)
The Agency properly identified Claim 1 as a common workplace occurrence, a supervisor reassigning an employee's work duties. Unless it is reasonably established that the actions were somehow abusive or offensive, and were taken in order to harass complainant on the basis of any of his protected classes, such everyday events are not sufficiently severe or pervasive so as to offend the general sensibility of an individual experiencing such occurrences in the workplace. See Wolf v. United States Postal Serv., EEOC Appeal No. 01961559 (July 23, 1998); see also Long v. Veterans Admin., EEOC Appeal No. 01950169 (Aug. 14, 1997). While an employee may prefer to perform certain duties, among others, or may have a different idea about how operations should be run, these are not issues which should be pursued in the EEO complaint process since decision makers in the complaint process cannot substitute their judgment on how to run the day to day operations of an Agency for that of the managers involved.
Likewise, Claim 2, when viewed in the light most favorable to complainant, also describes a common workplace occurrence; specifically, a supervisor discussing work duties with an employee. See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000) As for the alleged personnel action in Claim 2, a written letter of warning, we find the Agency provided sufficient proof that such a letter was never issued to Complainant. However, in claims of reprisal, this Commission has previously found that a non-personnel action, such as proposed or verbal warning, may still deter a person from engaging in protected EEO activity, and therefore state a claim. We have thoroughly reviewed the record and find the discussion described in Claim 2 unlikely to deter EEO activity.
On appeal, Complainant provides us with five specific reasons to reverse the Agency's dismissal. The proper focus for dismissals of individual EEO complaints under the EEOC Regulations is on whether the complainant is allegedly aggrieved due to an unlawful employment practice. Yost v. United States Postal Serv., EEOC Appeal No. 01A33585 (February 11, 2004); Fulmer v. Dep't of Justice, EEOC Appeal No. 01A40186 (Feb. 19, 2004); King v. Dep't of the Navy, EEOC Appeal No. 01A40422 (Mar. 17, 2004).
EEOC Regulation 29 C.F.R. � 1614.106(d) provides that a complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. If he has not done so already, Complainant may raise a separate complaint based on these allegations by contacting 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)
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that an agency shall dismiss a complaint that "states the same claim that is pending before or has been decided by the agency or Commission."
Reasons one, two and five attempt to raise new claims on appeal concerning Complainant's assignment to work in Automation. Specifically, in Reason 1, Complainant alleges he was denied overtime that he otherwise would have received, providing specific dates in February and March 2015. In Reason 2, Complainant alleges that C1 and two other coworkers (male, white, prior EEO Activity undisclosed) area all assigned to manual letters and get to stay in their assigned work areas, whereas Complainant is instructed to work in both manual letters and in Automation. In Reason 5, Complainant alleges he is "singled out to work in two different operations he is not assigned to when Caucasian employees are not required to do the same." He also alleges that the work he is "singled out" for is known to cause injuries, and is especially harmful for individuals with a disability (back and shoulder) such as him.2 We find Complainant is attempting to raise new claims on appeal that are not at issue in the complaint before us. Hence they will not be adjudicated in this decision.
Reasons three and four ask us to consider claims in prior EEO Actions against the Agency. Reason three cites Agency No. 1K221001114, which this Commission docketed as EEOC No. 0120141617 and dismissed for failure to state a claim on July 15, 2014. Therefore, we will not consider Complainant's past complaint except to note that it is the basis for the alleged reprisal in the instant complaint. The EEO actions in Reason 4 were raised by individuals other than Complainant, hence they are irrelevant to establishing whether or not Complainant suffered first hand as an "aggrieved employee" pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant fails to state a claim because the reasons he provided do not demonstrate that he is aggrieved as a result of the allegations raised in the instant complaint.
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
June 28, 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 To report unsafe working conditions or safety and health violations, contact the Occupational Safety and Health Administration ("OSHA") at (800) 321-6742 or www.osha.gov. Please note that OSHA is within the Department of Labor, which is a separate entity from the EEOC.
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