0120180162
12-28-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Annalee D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120180162
Agency No. 4F956010417
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's September 7, 2017 dismissal of her 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 Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales Services/Distribution Associate, or Clerk (PS-6) at the Folsom Post Office in Folsom, California.
On August 5, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discriminatory harassment on the bases of disability (physical) and reprisal for prior protected EEO activity (Agency Nos. 4F956006616 and 4F956003216) when:
1. On June 13, 2017, she became aware that management had moved the computer she used and other items to the retail counter; and
2. On July 15, 2017, she was instructed to hand out accountable items for Rural Route 28 ("RR28"), to the carrier's supervisor rather than to the carrier herself.
On June 13, 2017, Complainant returned to work after a period of FMLA leave, and found the workstation she had been using over the past 17 years was gone (desk, computer, files, reference materials and Complainant's personal notes and affects). A custodian helped her look for her belongings, as there was no indication where her personal items and notes had been moved to. They eventually found them at Window Service Station 6, where Complainant alleges that the "computer turned around, mouse broken and work files [with sensitive billing information] out."
Complainant alleges that the supervisor she named in her prior EEO complaints ("S1") influenced her current supervisor ("S2") to move her workspace based on their perceptions of her disability. In addition, she alleges that S2 did so without authorization. However, while S2's supervisor at the time, the Acting Postmaster ("PM"), acknowledges that he did not know all of the items that were moved, states in the record that he approved of moving Complainant's computer to the counter because it meant Complainant "could be readily available to assist with the retail counter when needed." PM spoke with both Complainant and S2 about the matter, and understood it to be resolved. PM also points out that by the relevant time frame, S1, was no longer a supervisor, and had been reassigned as the carrier for RR28.
On July 15, 2017, Complainant was instructed to submit accountable items to S1's supervisor instead of S1, even though Complainant had been submitting accountable items to RR28 for over 15 years. As the only clerk taken off this responsibility, Complainant felt "embarrassed" and "belittled" because her peers approached her and asked her why she did not deliver the RR28 accountable items to S1 directly, like they did.
The Agency dismissed Complainant's complaint for failure to state a claim, in accordance with 29 C.F.R. � 1614.107(a)(1).
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 she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
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).
Similarly, the Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Applying these standards, Complainant's allegations are insufficient to render her "aggrieved" for purposes of our regulations. Specifically, the Agency properly found Claims 1 and 2 constituted two "isolated incidents," or, "common workplace occurrences."
On appeal, Complainant appears to argue that she is "aggrieved" because the conditions of her employment were altered. For Claim 1, she explains that folders with personal payment information are no longer secure, as she must complete and submit sensitive financial documents in an area on view to customers. With regard to Claim 2, Complainant alleges she is singled out among her peers, creating a hostile work environment. Both allegations relate to adjustments to routine work assignments. It is well established that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences which are not sufficiently severe or pervasive to constitute harassment, unless the incidents occurred to harass complainant for a prohibited reason. Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010)
Taking into account the broad application of discriminatory retaliation, we find that Complainant's allegations, even considered together, in a light most favorable to Complainant, are insufficient to state a claim of a hostile work environment. Moreover, we find neither claim in the instant complaint reasonably likely to deter Complainant or others from engaging in protected activity.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
December 28, 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.
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