0120123367
03-27-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120123367
Agency No. 1C452000912
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 6, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's facility in Cincinnati, Ohio.
On July 14, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to hostile work environment harassment on the bases of race (Caucasian) and sex (male) when:
1. On March 28, 2012, his supervisor told him mesh sneakers were inappropriate footwear and accused him of faking an injury;
2. On March 28, 2012, during a Service Talk, Complainant's supervisor told Complainant he did not want to hear Complainant's voice;
3. On April 4, 2012, during a Service Talk, Complainant's supervisor cut Complainant off during the middle of his question;
4. Complainant's April 4, 2012 request for a union steward was delayed;
5. On April 11, 2012, Complainant's supervisor told an employee and the union that Complainant was going to file a grievance on having a junior person drive; and
6. On April 25, 2012, during a Service Talk, Complainant was asked, "can't you hear, don't you have ears?" in response to his question.
The Agency dismissed claims 1, 2, 3 and 6 pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1) on the grounds that they failed to state a claim. The Agency dismissed claims 4 and 5 as a collateral attack on the negotiated grievance procedure and determined that they failed to state a claim in accordance with EEOC Regulations.
ANALYSIS AND FINDINGS
In order to establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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. Complaints alleging retaliation prohibited by these statutes are considered to be complaints of discrimination for purposes of this pan. 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In the instant formal complaint claims 1, 2, 3 and 6 fail to state a claim under the EEOC regulations because Complainant failed to allege that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Regarding his claim of harassment, although Complainant claimed that the alleged incidents constituted harassment, we do not find that the alleged actions were sufficiently severe or pervasive to alter the conditions of her employment such as to state a claim of harassment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Therefore, we find that claims 1, 2, 3 and 6 fail to state a claim under the EEOC regulations because 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).
An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for a complainant to raise concerns regarding the conduct of union business is in the grievance forum, not the EEO process. Parker v. United States Postal Service, EEOC Appeal No. 0120072385 (July 20, 2007).
In the present case Complainant is alleging in claim 4 that his supervisor delayed his request for a union steward and in claim 5 that his supervisor spoke to the union and another employee about Complainant's alleged intentions to file a grievance. These are issues relating to the conduct of union business, and therefore, are not appropriately raised in the EEO process. The Agency was correct in dismissing claims 4 and 5 in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1) for failure to state a claim and as a collateral attack on another proceeding
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is affirmed for the reasons set forth herein.
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
March 27, 2014
__________________
Date
2
0120123367
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123367