0120114212
09-26-2012
John Coyle, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
John Coyle,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120114212
Agency No. 1B-108-0003-10
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated December 22, 2010, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
During the relevant time Complainant worked as a Supervisor, Distribution Operations at the Agency's Bethpage Logistics and Distribution Center in Bethpage, New York.
On December 3, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of color (white) and age (53) when: on August 23, 2010, Complainant's manager continually paged him, yelled at him, threatened him, and blocked his exit from his cubicle.
The Agency dismissed Complainant's claim pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency noted there is no evidence the Complainant was disciplined, and he has provided no evidence as to how he was injured or suffered a present harm or loss with respect to a term, condition, or privilege of employment with regard to his claims. Additionally, the Agency noted that in his formal complaint Complainant did not re-allege all of the issues raised during pre-complaint counseling. Thus, the Agency found that Complainant abandoned these issues when he did not re-allege them in his formal complaint.
On appeal, Complainant states that there was no change in the allegations from his pre-complaint to his formal complaint. Complainant also states that to the extent there was any lack of reporting the facts from his pre-complaint to the formal complaint, it was unintentional He also states he is appealing the fact that he was not harmed. Additionally, Complainant contends that he may not have been advised correctly by the EEO Counselor.
ANALYSIS AND FINDINGS
At the outset, we address the Agency's contention that Complainant abandoned some of the issues raised in pre-complaint counseling but not included in his formal complaint. We note the Agency does not identify any specific issues purported to be abandoned.
Upon review, we do not find that there are any issues raised on Complainant's Information for Pre-Complaint Counseling that were not also included in his formal complaint. Moreover, we note that on appeal, Complainant states that there was no change in the allegations from his pre-complaint to his formal complaint.
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. 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). 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.
Upon review, we note that Complainant alleged that on August 23, 2010, his manager continually paged him, yelled at him, threatened him, and blocked his exit from his cubicle. Complainant alleges that after having a discussion about personnel moves with his manager, he did not feel well and decided to leave work and seek medical attention. Complainant alleged that when he went back to his cubicle to fill out his leave slip, the incident with his supervisor occurred. Complainant stated that after he left the area of their initial discussion regarding personnel moves, his manager repeatedly had him paged, threatened him to do what he was told, yelled at him that he was not approving Complainant's leave for the day, and then came into the entrance of his cubicle and blocked his way to exit. Complainant stated that he called for another manager to assist him and that the other manager helped get Complainant's manager out of Complainant's cubicle. In his formal complaint, Complainant stated that after his supervisor stepped aside, he left the building for the day and filled out his paperwork in another part of the building.
Upon review, we find that Complainant failed to show that the isolated incidents complained of were so severe or pervasive that they created a hostile work environment. Moreover, we note that Complainant does not allege in either his formal complaint or on appeal that he was denied leave on August 23, 2010. With regard to Complainant's contention that he may have been advised incorrectly by the EEO Counselor, we note Complainant does not provide any specific information as to what he may have been mislead about by the EEO Counselor. Moreover, we find no evidence of any wrongdoing by the EEO Counselor. In the present case, we find that the Agency properly dismissed Complainant's complaint for failure to state a claim of harassment.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
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
September 26, 2012
__________________
Date
2
01-2011-4212
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013