closed0120131852
01-08-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120131852
Agency No. 1E-641-0008-13
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 28, 2013, 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
During the period at issue, Complainant worked as a Postal Support Employee Tractor Trailer Operator at the Agency's facility in Kansas City, Kansas. On March 4, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian) and sex (male).
In its final decision dated March 28, 2013, the Agency determined that Complainant's complaint was comprised of the following claim:
On February 11, and 27, 2013, [Complainant's] manager yelled at [him] four times; subsequently instructed [Complainant] and [his] co-workers to leave her office.
The Agency dismissed Complainant's complaint for failure to state a claim. The Agency reasoned that Complainant has not alleged a harm or loss with respect to a term, condition, or privilege of employment. In addition, the Agency reasoned that the alleged incidents were not sufficiently severe or pervasive to set forth an actionable claim of harassment.
The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant, on appeal, addresses claims he raised in pre-complaint counseling, but did not raise in his formal complaint.1 The Commission has long held that where a complainant raises a matter at counseling but later does not include that issue in the formal complaint, he/she cannot resurrect it later during processing or file another complaint concerning the abandoned claim. See Cahill v. U.S. Postal Serv., EEOC Appeal No. 0120111604 (Oct. 7, 2011); Small v. U.S. Postal Serv., EEOC Request No. 05980289 (July 16, 1999). Thus, we find that these issues were abandoned.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
We find that the Agency properly dismissed Complainant's complaint for failure to state a claim. The record reflects that Complainant alleged that on February 11, 2013, his supervisor yelled at him four times regarding an instruction pertaining to mail collection and that the supervisor told everyone to get out of her office. In addition, the record reflects that Complainant alleged on February 27, 2013, his supervisor yelled in a disrespectful matter over the radio, "you are not going to be telling me what I am going to do." We find that the alleged incidents are not sufficiently severe or pervasive to set forth an actionable claim of harassment.
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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
January 8, 2014
Date
1 We note that Complainant, in his formal complaint, lists the dates of the alleged discrimination as February 11 and 27, 2013.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120131852
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131852