0120083826
06-24-2010
Wilbert Brown, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Wilbert Brown, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120083826
Agency No. 4G-700-0140-08
DECISION
On July 31, 2008, Complainant filed a timely appeal with this Commission
from the Agency's decision dated July 11, 2008, dismissing his formal
Equal Employment Opportunity (EEO) 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. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency's dismissal of Complainant's formal
EEO complaint.
ISSUE PRESENTED
Whether the Agency properly dismissed Complainant's formal EEO complaint
alleging discrimination in reprisal for engaging in prior EEO activity
when, on May 5, 2008, he was harassed in that: (1) he was yelled at; (2)
he was observed on the route; (3) he was forced to carry business mail;
(4) he was told he could not file an EEO complaint because the alleged
discriminating official was Black; and (5) management did not want to
pay him for lost time due to an on-the-job injury, for failure to state
a claim in accordance with 29 C.F.R. � 1614.107(a)(1).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was
employed as a Full-time City Carrier at the Agency's Jefferson Street Post
Office, in Lafayette, Louisiana. On May 16, 2008, Complainant requested
pre-complainant processing. He was sent a "Notice of Right to File an
Individual Complaint" on June 12, 2008, and filed a formal EEO complaint
with the Agency on June 30, 2008 alleging that he was discriminated
against as set forth in the above-entitled statement, "Issue Presented."
The record reflects that the acting Station Manager explained that the
delivery method used by Complainant (delivery of business mail), which
Complainant alleges was improper, was the preferred method of delivery for
Complainant's particular route on the date in question because it resulted
in a more efficient delivery of the mail. Counselor's Report, at Page 3.
Additionally, the acting Station Manager stated that he did not yell at
Complainant, but that Complainant may have been observed often because
all carriers are frequently observed by all station supervisors. Id.
The record indicates that Complainant's claim regarding continuation
of pay (COP) following his on-the-job injury was put on hold until he
submitted acceptable and required medical documentation. Id. The record
is devoid of any information regarding the alleged comment discouraging
Complainant from filing an EEO complaint. Id.
In a decision dated July 11, 2008, the Agency dismissed Complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. Specifically, the Agency found that Complainant could not be
properly considered a "person aggrieved" unless he could demonstrate that
he suffered a direct and personal deprivation at the hands of the agency.
Agency's Dismissal Decision, at Page 1.
CONTENTIONS ON APPEAL
Complaint raises no contentions on appeal. In response to Complainant's
appeal, the Agency reiterates its reasons stated in the Dismissal
Decision, and requests that the Commission affirm the dismissal.
Agency's Response to OFO Request for Complaint File, at Page 1.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. 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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Even if Complainant's claims
were taken as established, the incidents of which he complains are not
sufficiently severe or pervasive to create a hostile work environment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). The record does not establish that the Agency's actions in
any way harmed or cause Complainant a loss with respect to any term,
condition, or privilege of employment. The record does not reflect
that the disciplinary actions in any way affected Complainant's title
(Full-time City Carrier), pay, benefits, location, or duties. In light
of these facts, the Commission finds that the Complainant failed to
state a claim under the EEOC regulations.
Further, with regard to the claim that he was told that he could not
file an EEO complaint based on race against an alleged discriminating
official (ADO) because the ADO was a member of complainant's same race,
the Commission has held that an allegation that an agency official engaged
in conduct that could reasonably be expected to deter an employee from
engaging in EEO activity states a cognizable claim under the statutes we
enforce. Sanders v. Department of Education, EEOC Request No. 05990744
(October 13, 2000) (threats made by an agency official to a group of
employees deterred subsequent protected of persons present). We do
not find, however, that the alleged provision by some unknown person of
inaccurate information with regard to who may be the subject of an EEO
complaint constitutes conduct sufficient to discourage an individual from
engaging in EEO activity. Cf., Zieff v. Department of Homeland Security,
EEOC Appeal No. 01A52515, (February 24, 2006). We therefore find that
this allegation does not state a claim.
CONCLUSION
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 24, 2010
Date
2
0120083826
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120083826