0120161211
11-22-2016
Zachary K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zachary K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120161211
Agency No. 1B102001516
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 18, 2016, dismissing 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. 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 Mail Handler at the Agency's Morgan Processing and Distribution Center facility in New York, New York.
On January 29, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), religion (Jewish) and age (71) when, on December 17, 2015, the Manager Distribution Operations (MDO) pointed her fingers in Complainant's face, pushed him on his shoulder, and told him that that she would make him retire early.
The record shows that the Manager loudly questioned Complainant with regard to his actions. She repeatedly told him that he did not have a bid assignment and questioned Complainant's judgment as to why Complainant had taken an unsealed package to a different site for resealing. No personnel action was taken. Complainant was embarrassed and left the premises.
Agency Decision
The Agency dismissed the complaint for failure to state a claim. The Agency reasoned that this did not involve any alleged personnel action and the claim pertained to a single incident that was not severe enough to create a discriminatory work environment.
This appeal followed. Complainant did not submit a brief in support of his appeal.
ANALYSIS AND FINDINGS
Failure to State a Claim
Our review is de novo. An agency shall accept a complaint from any 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, 1614.106(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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Here, Complainant is alleging discrimination, on the basis of race, religion, and age, with regard to a single incident and comment that was made to him regarding his job performance when he was on the work floor. Although Complainant states that he was embarrassed, there is no allegation of an injury or harm to a term, condition or privilege of employment. Significantly, he acknowledged that the Manager's comment occurred after he was observed taking a package to a different location for resealing. She yelled at him that he was taking actions inconsistent with the Manager's expectations since he did not have a bid assignment. Therefore, even assuming that the comment was made, there is no claim that he suffered a tangible loss from any unlawful personnel action.
Further, we note, from the EEO Alternative Dispute Resolution Specialist's (ADRS) Inquiry Report, that during the pre-counseling process, Complainant raised disability as an additional basis with regard to a time and attendance claim. He asserted that, on May 11, 2016, his supervisor placed him on Absence without Leave after he left the premises and was away for 66 hours. The record shows, however, that he did not raise this basis or his leave claim in the formal complaint that is before us here.
Consequently, we find that the complaint that was filed regarding the comment fails to state a claim under the EEOC regulations. Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). 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.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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
November 22, 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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