0120101752
08-10-2010
Calvin Anderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Calvin Anderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120101752
Agency No. 4G-720-0012-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 8, 2010, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. 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.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to discriminatory harassment on the bases of race (African American), national origin (African American), sex (male), religion (Islam), color (black), disability (not disclosed to protect Complainant's privacy), age (61), and reprisal for prior protected EEO activity when:
1. On or around August 25, 2009, Complainant was not provided with a copy of the PS Form 1838C for his route after territory was added to it;
2. On September 17 & 18, 2009, Complainant contacted the call center to report off work and he was instructed to call his supervisor;
3. On October 14, 2009, Complainant was instructed to carry overtime on his route;
4. On October 16, 2009, Complainant told his supervisor he would not be able to complete his route in 8 hours and his manager shouted at him and told him he "better make the route";
5. On unspecified dates, Complainant was followed to the restroom, was asked when he was going to retire, and has been under constant surveillance; and,
6. On October 16 & 23, 2009 and subsequent dates, Complainant observed another employee on his route and Complainant believes this employee was sent by management to observe him.
CONTENTIONS ON APPEAL
The Agency urges us to affirm its dismissal of Complainant's complaint for failure to state a claim. Complainant did not submit any brief in support of his argument.
FINDINGS AND ANALYSIS
A complaint should not be dismissed for failure to state a claim unless there are insufficient facts present to support a claim that is at least plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). EEOC Regulation 29 C.F.R. � 1614.107(a) provides that an agency shall dismiss a complaint that fails to state a claim under 29 C.F.R. �� 1614.103 or 1614.106(a). Commission regulations further provide that 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 the agency because of race, color, religion, national origin, sex, age, disability, or reprisal. Fucci v. U.S. Postal Serv., EEOC Appeal No. 01956625 (August 27, 1996). 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. Sims v. U.S. Postal Serv., EEOC Appeal No. 0120101113 (June 4, 2010) (citing Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994)).
However, the anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U.S. 53 (2006). To state a viable claim of retaliation, a complainant must allege that: 1) he was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. While trivial harms would not satisfy the initial prong of this inquiry, the significance of the act of alleged retaliation will often depend upon the particular circumstances. See also EEOC Compliance Manual, No. 915.003 (May 20, 1998) (any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity states a claim).
Upon review of the instant matter, the Commission finds that Complainant's complaint does not state a claim of actionable harassment. Complainant has not shown how Claims 1 or 2 affected a term, condition or privilege of employment nor, moreover, do we feel that the events as alleged in this claims would prevent a reasonable employee from seeking redress through the EEO process. Claim 3 alleges that Complainant was forced to work overtime though his name is not listed on the overtime desire list. He concedes that under the "contract" he can be required to work 30 minutes more than his shift, but alleges was required to work 11/2 hours of overtime. The Commission finds that this behavior generally is satisfactory to state a claim; however, in this case where it was a one time incident and Complainant was amenable to working 30 minutes of overtime; while the Agency went over, we do not see this as sufficiently adequate to state a claim. Nor would a reasonable employee have felt deterred from participating in protected activity after the Agency engaged in this behavior. Therefore, it was proper for the Agency to dismiss Complainant's allegation as set forth in Claims 1-3.
The Commission agrees with the Agency's conclusions with respect to all other claims (Claims 4-6). The Commission finds that Complainant did not show how the events alleged in Claim 4 affected a term, condition, or privilege of his employment or that the events would have dissuaded a reasonable employee from participating in the EEO process. Finally, with respect to the allegations of surveillance and monitoring as set out in Claims 5 & 6, the Commission finds that the relative handful of dates Complainant specifies these things occurred do not rise to the level of actionable harassment. See Singleton v. USPS, EEOC Appeal No. 01A41698 (January 21, 2005) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997)).
CONCLUSION
Complainant has alleged conduct which the Commission feels could persuade a reasonable employee to abstain from participating in protected activity. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. The complaint is hereby remanded to the Agency for further processing in accordance with this decision and the Order below.
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
August 10, 2010
__________________
Date
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0120101752
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101752