01a45912r
12-21-2004
Dale Mackelprang, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Dale Mackelprang v. United States Postal Service
01A45912
December 21, 2004
.
Dale Mackelprang,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A45912
Agency No. 4F-852-0099-04
DECISION
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. In a complaint dated July 8, 2004, complainant alleged
that he was subjected to discrimination on the bases of race (Caucasian),
sex (male), religion (LDS Mormon), disability, age (D.O.B. 6/4/48),
and in reprisal for prior EEO activity when:
(1) on or about March 24, and April 4, 2004, management questioned
complainant's Family Medical Leave Act (FMLA) re-certification signed
on February 4, 2004, when complainant received notices that he was being
sent for a second FMLA medical opinion;
(2) and on or about June 30, 2004, complainant received notice that he
was being sent to obtain a FMLA medical opinion.
The agency issued its final agency decision (FAD) on August 6, 2004,
and dismissed the complaint for failure to state a claim. In its FAD,
the agency reasoned that because the FMLA process is under the Department
of Labor, this complaint is nothing more than a collateral attack on the
FMLA process, and, as such, is under the jurisdiction of the Department
of Labor.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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 (April 21, 1994).
The Commission has also held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July
30, 1998); Kleinman v. United States Postal Service, EEOC Request No.
05940585 (September 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 25, 1993). The proper forum for
complainant to have raised his challenges to actions which occurred
relating to the FMLA process would be with the Department of Labor.
It is inappropriate to now attempt to use the EEO process to collaterally
attack actions which are related to the FMLA process.
On appeal, complainant argues that he was harassed by the agency's
actions and therefore, he does not need to show the agency's actions
actually harmed him. Complainant argues that he only has to show that the
agency's actions were undertaken with the purpose of creating a hostile
work environment and that the conduct is sufficiently severe or pervasive
as to alter the conditions of complainant's employment. In determining
whether a harassment complaint states a claim in cases where a complainant
had not alleged disparate treatment regarding a specific term, condition,
or privilege of employment, the Commission has repeatedly examined
whether a complainant's harassment claims, when considered together and
assumed to be true, were sufficient to state a hostile or abusive work
environment claim. See Estate of Routson v. National Aeronautics and
Space Administration, EEOC Request No. 05970388 (February 26, 1999).
Furthermore, consistent with the Commission's policy and practice of
determining whether a complainant's harassment claims are sufficient to
state a hostile or abusive work environment claim, the Commission has
repeatedly found that claims of a few isolated incidents of alleged
harassment usually are not sufficient to state a harassment claim.
See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030
(July 12, 1996); Banks v. Health and Human Services, EEOC Request
No. 05940481 (February 16, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995)(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,
the trier of fact must consider all of the circumstances, including the
following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
After considering all of the circumstances, the Commission finds that
the complaint fails 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. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Additionally, complainant failed to show that the
actions complained of were so severe or pervasive that they created a
work environment abusive to employees because of their race, gender,
religion, national origin, disability or age. Accordingly, the agency's
final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
______________________________ December 21, 2004
Carlton M. Hadden, Director Date
Office of Federal Operations