0120170726
04-10-2017
Horacio M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Horacio M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120170726
Agency No. 4K200012816
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 25, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at Friendship Station in Washington, D.C.
On October 17, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discrimination on the basis of reprisal for prior protected EEO activity (Agency Case No. 4K200012816) when:2
1. On July 27, 2016, he was subjected to street supervision and spoken to in a demeaning manner; and
2. On August 30. 2016, he was subjected to street supervision; had his personal space invaded; and was spoken to in a loud demeaning manner.
According to Complainant's version of events, as detailed in the EEO counseling report and formal complaint, on July 27, 2016, the Manager of Customer Service ("M1") conducted a street observation of Complainant's delivery route. M1 allegedly checked his vehicle as though she was looking for something to complain about. Then, M1 followed Complainant in her personal vehicle, and accompanied him when he made deliveries on foot. Throughout the observation, Complainant felt "very uncomfortable," as though M1 was trying to "intimidate" and "provoke" him. Complainant was unnerved when M1 "got really close" multiple times, such as in the mailbox area of an apartment building, which he described as an area not large enough for two people.
During the observation, Complainant said that M1 questioned what she observed to be "time-wasting practices" including Complainant's decision to move his van closer to another part of his route, the amount of trips it took for him to gather mail and packages, and the way he packed mail into his van. Complainant believed the intense July heat, high volume of mail and weight of the packages were obvious reasons for his actions, so he began to ignore M1. At one point, he said in a low voice "I'm not listening to you," to which M1 allegedly responded "What did you say? What did you say? I know you can hear me." At another point, two additional managers joined the observation, so three people were staring at Complainant as he did his job. When M1 left briefly, another manager ("M2") took over and asked Complainant why he chose to deliver mail in a certain order as it was a "time-wasting practice." Rather than explain that it was too heavy in the heat, Complainant responded "I'm working" and tried to ignore management.
Then, according to Complainant, M1 returned "to harass [him] even more" and the other managers left. By his own account, Complainant intentionally slowed his pace because he thought M1 wanted him to walk faster. For a specific portion of his route, M1 instructed Complainant to carry several deliveries "all in one hit" rather than go back and forth to the van. Complainant ignored her and M1 stated in a "harsh tone" that Complainant was to complete that portion of the route within 30 minutes. When he said he would do his best, M1 allegedly responded "that's not good enough" and threatened to "walk with [Complainant] every day."
On August 30, 2016, M2 and another supervisor ("M3") gave Complainant additional mail to deliver and informed him they would observe him on his route. M2 and M3 followed Complainant in a different postal vehicle, and unlike M1 did not stay for his entire shift. Complainant alleges that M2 invaded his personal space, intimidating him and making him nervous. Then, after Complainant delivered mail for one side of a street, when he went back for a package to deliver, when M2 started "screaming" at him. M2 screamed that Complainant was engaging in a "time-wasting practice" because he should have brought the package with his mail delivery rather than make multiple trips. Complainant chose to ignore M2, and she allegedly continued to "scream" and people were looking, causing Complainant to feel mortified.
Complainant initiated the instant EEO complaint, which the Agency dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, .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). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings 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 the complainant's employment. Thus, not all claims of harassment are actionable.
For allegations of reprisal, such as the instant complaint, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007).
Even applying the broad view of coverage afforded to reprisal claims, we agree with the Agency's determination that Complainant failed to establish that he is an "aggrieved" employee. Complainant does not allege that he was disciplined (despite overtly ignoring his supervisors' instructions and questions) or otherwise affected by the alleged discriminatory actions. To the extent Complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven to be true, would not indicate that complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment. See Cobb v. Dep't of the Treasury, Request No. 05970077 (Mar. 13, 1997).
In the instant complaint, Complainant does not dispute the Agency's statement in the record that all letter carriers are subject to street observations by management, and he provides no evidence to show he was targeted more frequently than his colleagues. Unless it is reasonably established that the actions were somehow abusive or offensive, and were taken in order to harass complainant on the basis of any of his protected classes, such everyday events are not sufficiently severe or pervasive so as to offend the general sensibility of an individual experiencing such occurrences in the workplace. See Wolf v. United States Postal Serv., EEOC Appeal No. 01961559 (July 23, 1998); see also Long v. Veterans Administration, EEOC Appeal No. 01950169 (Aug. 14, 1997). M1 and M2's comments about "time-wasting practices," which Complainant found disrespectful, are instances of supervisors questioning an employee about his work performance. We have previously established that instances of supervisors questioning an employee about his work performance are "common workplace occurrences." See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). For instance, in Carver, we found Complainant's allegations that two of his supervisors questioned the performance of his duties, and reprimanded him the same day for refusing to respond to their questions about his performance, failed to state a claim of harassment, but instead described a common workplace occurrence-a supervisor questioning an employee about work duties.
Regarding the allegations of "intimidation" and "embarrassment," we find Complainant is describing a few isolated incidents of harassment, which are insufficient to state a claim of harassment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (Jul. 12, 1996). Although he alleges that M1 harassed him on a "daily" basis, there are only two specific claims of harassment before us, supervisory street observations, which occurred roughly a month apart. The discomfort and intimidation Complainant allegedly experienced due to M1 and M2's close proximity, as well as the instance of M2 publicly "screaming" at him allege isolated incidents of alleged harassment. Complainant may have felt uncomfortable and intimidated by M1 and M2's close proximity during his route, we note that neither M1 nor M2 rode in Complainant's vehicle with him, and several if not all of the alleged incidents of close proximity occurred in spaces where Complainant acknowledges that close proximity was unavoidable. By Complainant's own account, the instances of close proximity also occurred after he deliberately spoke soft enough that it was difficult for M1 to hear him, and Complainant ignored M1 and she attempted to get his attention. Likewise, Complainant's allegation that S2 publicly "screamed" at him describes an isolated incident. See, e.g. Banks v. Dep't of Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995) (finding allegations that on one occasion a supervisor threw a file on the complainant's desk and berated her in a loud voice in the presence of other employees insufficient to state a harassment claim). Even taking into consideration the broad view of coverage afforded reprisal and harassment claims, we do not find Complainant's accounts sufficiently severe or pervasive to assert a viable hostile work environment claim.
On appeal, Complainant alleges that "[M]anagement continues to harass [him], and conspire against [him] any way possible." As this allegation concerns incidents that occurred after Complainant filed his formal complaint, it will not be reviewed in this decision. If Complainant wishes to pursue these new harassment allegations in an EEO complaint, he must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). Complainant also alleges that Management is in breach of the national union agreement, and is "knowingly and willfully disregarding Postal policies." Such allegations are outside the jurisdiction of this Commission, and must be raised within the negotiated grievance process, or pursued within the Agency's specified administrative processes. See Lambert v. Social Security Admin., EEOC Request No. 05A30330 (Feb. 6, 2003).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 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 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
April 10, 2017
__________________
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.
2 The documents Complainant provided as his Formal Complaint include an allegation of harassment and hostile work environment.
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