01990849
09-15-1999
Brent E. Gray, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Brent E. Gray v. United States Postal Service
01990849
September 15, 1999
Brent E. Gray, )
Appellant, )
) Appeal No. 01990849
v. ) Agency No. 4-C-450-0068-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq. (Title VII), and �501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et
seq. (Rehabilitation Act) The appeal is accepted in accordance with
EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
allegations (1)-(3) and (5) for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on August 28, 1998, alleging
discrimination on the bases of race (African American) and physical
disability (feet) in that his station manager created a hostile work
environment. His complaint detailed five incidents on March 10, 1998,
in support of his claim:
1) station manager told him that he was sitting in a bad place for lunch;
2) station manager yelled "Get off my workroom floor" to appellant;
3) management accused appellant of reading other people's mail;
4) appellant's request for union representation was not honored and
5) appellant was advised by management not to touch any flats whatsoever.
In its FAD, the agency characterized the incidents as separate allegations
of discrimination. It accepted allegation (4) for processing and
dismissed allegations (1)-(3) and (5) in which it found that appellant
was not aggrieved. Therefore, the agency dismissed those allegations
pursuant to 29 C.F.R. �1614.107(a) for failure to state a claim.
This appeal followed.
On appeal, appellant argues that he was aggrieved with regards to
allegation (3) because he was issued a seven-day suspension for the
incident described therein. The agency did not deny that appellant
received disciplinary action but contends that this was not raised in
the complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal of
a complaint or portion thereof which fails to state a claim within the
meaning of 29 C.F.R. �1614.103. 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. Riden v. Department of the
Treasury, EEOC Request No. 05970314 (October 2, 1998).
In the case at hand, appellant does not claim, and there is no evidence
that he was subjected to any disciplinary action or received suspension
regarding allegations (1), (2), and (5). Further, the Commission has
held that a remark or comment unaccompanied by concrete action is not
a direct and personal deprivation sufficient to render an individual
aggrieved for purposes of Title VII. See Simon v. United States Postal
Services, EEOC Request No. 05900866 (October 3, 1990).
However, with regard to allegation (3), appellant has shown that he
received disciplinary action in the form of a seven-day suspension.
The agency does not deny that appellant received the suspension.
The suspension clearly states that management issued the suspension
after the incident described in allegation (3). Therefore, the agency
improperly dismissed allegation (3) for failure to state a claim.
In appellant's complaint, he asserted that the actions cited constituted
harassment. In order to constitute a violation of Title VII and the
Rehabilitation Act, the conduct must be "so objectively offensive as
to alter the conditions of the victim's employment." See Enforcement
Guidance: Vicarious Employer Liability for Unlawful Harassment by
Supervisors, EEOC Notice No.915.002 (June 18, 1999) (citing Oncale
v. Sundowner Offshore Services, Inc., 118 S. Ct. 998, 1002 (1998)).
Therefore, we find that even viewing the totality of appellant's
complaint, the actions described therein are not sufficient to state a
harassment claim.
CONCLUSION
For the foregoing reasons, we AFFIRM in part the final agency decision
with regard to allegations (1), (2), and (5) and REVERSE in part the
final agency decision with regard to allegation (3) and REMAND this case
for further procession consistent with this decision and order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
Sept. 15, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations