0520120311
10-23-2012
James E. Swink, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
James E. Swink,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Request No. 0520120311
Appeal No. 0120113885
Agency No. 4E-640-0086-11
DENIAL
Complainant timely requested reconsideration of the decision in James E. Swink v. U.S. Postal Service, EEOC Appeal No. 0120113885 (January 23, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
BACKGROUND
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), age (58), and reprisal for prior protected EEO activity when: (1) on April 12, 2011, he was instructed to curtail mail to keep within his eight-hour day working restriction, and subsequently he was ordered to work overtime in violation of his restrictions; (2) on April 13, 2011, he was accused of failing to follow instructions; and (3) on April 28, 2011, he was instructed to provide additional medical documentation even though he was not on restricted sick leave.
The appellate decision affirmed the Agency's final decision dismissing Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the appellate decision found that the complaint did not challenge an Agency action or inaction regarding a specific term, condition, or privilege of employment. In addition, the appellate decision found that Complainant's allegations were insufficient to state a claim of hostile work environment. Further, the appellate decision found that Complainant failed to set forth a viable claim of reprisal. The appellate decision noted that Complainant conceded that he did not work any overtime on April 12, 2011 and was not disciplined as a result.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant contended that the appellate decision involved a clearly erroneous interpretation of material fact or law. First, Complainant argued that the appellate decision erred in finding that he failed to state a hostile work environment claim. Specifically, Complainant asserted that the conclusion that he did not work any overtime and was not disciplined goes to the merits of his complaint and is irrelevant to the procedural issue of whether he stated a cognizable claim. Second, Complainant argued that the appellate decision erred in viewing his claim as moot1 because requested compensatory damages. Third, Complainant argued that the appellate decision erred in finding that he failed to set forth a viable claim of reprisal. Specifically, Complainant asserted that the Agency's actions could have a chilling effect on his use of the EEO process because he was subjected to threats and intimidation, and was treated differently than similarly situated employees.
The Agency did not submit a brief or statement in opposition to Complainant's request.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, Complainant failed to show that the appellate decision clearly erred in dismissing his complaint for failure to state a claim.
Initially, we find that the appellate decision did not clearly err in determining that the complaint did not challenge an Agency action or inaction regarding a specific term, condition, or privilege of employment. Terms, conditions, or privileges of employment include, among other things, overtime and discipline. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Here, Complainant did not allege in his formal complaint that he worked overtime or that he was disciplined; instead, he alleged that he was ordered to work overtime and he was accused of failing to follow instructions.
Next, we find that the appellate decision did not clearly err in determining that Complainant's allegations were insufficient to state a hostile work environment claim. Complainant appears to argue that he stated a claim because he alleged "harassment" on a protected basis. The Commission, however, has explicitly stated that in order to state a hostile or abusive work environment claim, a complainant must allege facts which, if proven true, would indicate that the complainant may have been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment. See Cobb, supra. Here, we agree with the appellate decision that Complainant's allegations of three isolated incidents of alleged harassment over three days (ordered to work overtime on April 12, 2011, accused of failing to follow instructions on April 13, 2011, instructed to provide additional medical documentation on April 28, 2011), when considered together and assumed to be true, are not sufficient to state a hostile or abusive work environment claim.
Further, we find that the appellate decision did not clearly err in determining that Complainant failed to set forth a viable claim of reprisal. Complainant has not shown that the Agency's instructions and accusations, as stated in his formal complaint, if proven true, constitute adverse treatment that is reasonably likely to deter him or others from engaging in protected activity.
Finally, the Commission has long held that where, as here, a claim fails to render an individual aggrieved, it does not convert into a cognizable claim because the employee requests compensatory damages for physical or emotional injury. See Girard v. Dep't of the Treasury, EEOC Request No. 05940379 (Sept. 9, 1994).
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120113885 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
_10/23/12_________________
Date
1 We note that the appellate decision did not dismiss Complainant's complaint pursuant to
29 C.F.R. � 1614.107(a)(5), for mootness.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0520120311
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120311