0120180310
03-20-2018
Trey M,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
Trey M,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120180310
Agency No. 4F920012017
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's September 27, 2017 dismissal of his complaint alleging 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 Letter Carrier, at the Agency's Midway Station facility in San Diego, California.
On August 3, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to harassment/hostile work environment on the bases of race (African American), color (Black), age (64), and retaliation for engaging in protected EEO activity2 when:
On April 7, 2017, the Station Manager ("SM") yelled across the workroom floor in the presence of Complainant's coworkers that he was a troublemaker and that things had run smoothly while he was off work due to surgery.
The April 7, 2017 incident occurred four days after Complainant returned from work after approximately five months on leave to recover from knee surgery. Complainant was a Shop Steward, and had been a Union Representative for nearly 30 years, and he often interacted with SM, his supervisor, in his capacity as Union Steward, when representing coworkers on grievances or other Union related matters. Over the years, Complainant entered multiple settlement agreements through both the EEO and Grievance processes with SM and Management concerning the Agency's regulations requiring workers and Management show "mutual respect." In this instance, Complainant alleged that SM yelled at Complainant as he quietly sorted mail. Complainant provided four witness statements describing SM's actions as "unprofessional" and "disrespectful" and "humiliating." He further contends that SM does not act disrespectful toward a similarly situated Caucasian coworker.
SM disputes Complainant's allegation, explaining she raised her voice so Complainant would hear her across the room, and she had been trying to alert him to changes that had been made to policies on the workroom floor during his absence. According to SM, "in most cases there are differences of opinion when both [she and Complainant] are trying to work together." SM also acknowledges that Complainant acting in his role as Union Steward contributes to their differences. According to Complainant, the April 7, 2017 incident was one of a number of incidents when SM deliberately attempted to "humiliate, degrade, and publicly embarrass him."
supported by 4 witness statements in the record Complainant further alleged that SM's actions constituted breach of multiple settlement agreements he previously entered with SM.
The Agency dismissed complainant's complaint for failure to state a claim, in accordance with 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
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 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).
In instances of reprisal, the alleged adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment. See 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." See Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007).
Likewise, a harassment/hostile work environment allegation does not require an adverse action to a specific term, condition or privilege of a complainant's employment to state a claim, so long as the complainant can establish that the alleged discriminatory action was intended to create a hostile work environment, and that the alleged harassing conduct was sufficiently severe or pervasive as to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, 310 U.S. 17, 21 (1993). All alleged harassing incidents and remarks must be considered together, in the light most favorable to the complainant, when determining whether they state a claim. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
Here, Complainant's allegations do not indicate that he suffered a harm or loss with respect to a term, condition or privilege of employment for which there is a remedy. Applying the broad view of coverage afforded to reprisal claims, we find no indication that the alleged discriminatory act would deter Complainant or others from engaging in future protected activity. As for establishing harassment or hostile work environment, we find the alleged discrimination, comprised of a single incident, too isolated and insufficiently severe to establish the existence of a hostile work environment. See James v. Dep't of Health and Human Serv., EEOC Request No. 05940327 (Sept. 20, 1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982).
Complainant and several of his witnesses raise generalized claims alluding to ongoing harassment by SM, possibly spanning years. For instance, Complainant states in his Formal Complaint that this is "not an isolated incident and is reoccurring inappropriate inhumane conduct by [SM]," causing him "an unpleasant working environment." Yet, Complainant does not provide specifics aside from his one allegation of harassment in the instant complaint. These generalized claims and previously settled EEO complaints and grievances Complainant provided cannot establish the existence of a hostile work environment. See Malewich v. United States Postal Serv., EEOC Appeal No. 01A40485 (Mar. 12, 2004) (finding the Agency properly dismissed the complainant's "generalized claim that he had been subjected to harassment since 1995" referencing several prior EEO complaints for failure to state a claim). While unprofessional, rude and humiliating, we have routinely rejected allegations describing one or a few isolated incidents of "verbal abuse" as insufficient to establish a harassment/hostile work environment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (finding allegations that a supervisor "verbally attacked" complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign-in log, were insufficient to state a harassment claim); see also Banks v. Dep't of Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995) (allegation that on one occasion, a supervisor threw a file on the complainant's desk and berated her in a loud voice in the presence of other employees was insufficient to state a harassment claim). Thus, Complainant fails to state a claim under our regulations.
Breach of EEO Settlement Agreements
Complainant also argues that the alleged discriminatory act in this complaint was in breach of multiple settlement agreements he entered with SM.3
Pursuant to 29 C.F.R. � 1614.504(c), allegations that subsequent acts of discrimination violate a settlement agreement shall be processed as separate complaints. "Subsequent acts of discrimination" include incidents that are not expressly addressed within the settlement agreement, or allegations of retaliation for EEO activity related to or arising from the settlement agreement. See Shanice C. v. United States Postal Serv., EEOC Appeal No. 0120152764 (Feb. 16, 2017). In such cases, rather than raise a breach allegation, the complainant should contact an EEO Counselor in accordance with 29 C.F.R. � 1614.105.
Under the circumstances presented here, we find that the Agency properly determined that the instant complaint constituted a "subsequent act" of discrimination, and processed it in accordance with 29 C.F.R. � 1614.105 instead of processing it as a breach claim pursuant to 29 C.F.R. � 1614.504(b). See Covington v. United States Postal Serv., EEOC Appeal No. 01913211 (Sept. 30, 1991).
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
March 20, 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 We clarified the bases of Complainant's complaint to include reprisal based on the EEO Counselor's Report, Complainant's submissions during counseling, and his initial allegation, which alleged reprisal and identified his prior EEO complaints, Agency Nos. 4F920010808, 4F920008509, 4F920002513 and 4F920007411 (EEOC Appeal No. 0120122126 (July 7, 2013), reconsideration denied EEOC Request No. 0520130652 (Jan. 31, 2014)).
3 We decline to review Complainant's arguments and breach allegations for matters resolved through the grievance process, which is outside the EEOC's enforcement jurisdiction. See Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120142347 (Nov. 5, 2014) (finding the complainant's allegation that the agency did not comply with a grievance decision was a collateral attack on another administrative proceeding and failed to state a claim within the meaning of the Commission's regulations).
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