0120141639
09-16-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120141639
Agency No. 1K-221-0002-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 28, 2014, 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 Distribution Clerk at the Agency's Merrifield Processing & Distribution Center facility in Merrifield, Virginia.
On January 29, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Indian), national origin (Bangladesh), and religion (Muslim) when:
1. On July 9, 2013, Complainant's Supervisor said to him "I don't care about your religion, I'm tired of this [expletive] thing;"
2. On October 15, 2013, Complainant's Supervisor verbally berated him on the work floor and said "[expletive] go to the hot breakdown;"and
3. On October 23, 2013, Complainant's Supervisor said "you [expletive] lazy; and
made fun of him in front of another co-worker.
Complainant's claim is that the supervisor "does not use foul language towards other employees. [Complainant is] the only employee that gets treated in this manner." For relief, Complainant requested that the supervisor be taken out of his chain of command and that Complainant be given an opportunity to practice his religion. The record indicates that the Lead Manager Distribution Operations conducted a meeting with Complainant and Complainant's representative to address Complainant's concerns and the requested relief. According to the signed EEO Counselor's Report, Management granted Complainant's request to move to another tour. Consequently, the named responsible official is no longer in Complainant's chain of command.
On February 28, 2014, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency reasoned that there was no evidence that Complainant was subjected to any adverse action or denied any entitlement to a term, condition or privilege of employment.
In addition, the Agency dismissed allegation 1 for untimely EEO contact. The Agency reasoned that Complainant did not make initial EEO contact until October 23, 2013, which was beyond the 45 day timeframe from the July 9, 2013 date of incident. The Agency found that Complainant had not provided any persuasive evidence that he was unaware of the time limit or prevented by circumstances beyond his control from contacting the EEO Counselor. The Agency did not address the timeliness of allegations 2 and 3. Instead, the Agency concluded that those allegations should be dismissed for failure to state a claim, because Complainant did not claim any personal loss or action that was taken against him.
This appeal followed.
ANALYSIS AND FINDINGS
Claims 1 - 3: Failure to State a Claim - Not Aggrieved
The Commission 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. 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. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
With regard to his claims, Complainant alleged that the supervisor directed three profane comments specifically to him, over a four month period. To the extent that he suffered an adverse action, the harm is related to only to the alleged harassment. He has not identified any other adverse actions taken against him or harm. There is no claim of any denial of leave or religious accommodation in the complaint that is before us. Complainant is predicting the potential for a future harm, i.e., that he might be denied an opportunity to practice his religion.
To establish a claim of harassment based on race, national origin or religion, a complainant must show that: (1) he is a member of the statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998) Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Complainant does not allege incidents that were sufficiently severe or pervasive to alter the conditions of his employment.
Further, an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However, where, as here, the harassment does not result in a tangible employment action, the agency can raise an affirmative defense, by demonstrating that it exercised reasonable care to prevent and correct promptly any harassing behavior. This defense is available in this case, where the harassment did not result in any tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee.
The record shows that the Agency took steps to prevent and correct the harassing behavior. The Agency granted Complainant's request and removed the named responsible management official from Complainant's chain of command. Complainant did not request compensatory damages. There is no remedial relief available for Complainant on this claim. For these reasons, we do not find that Complainant has stated a claim for an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Since we are affirming the Agency's dismissal on the grounds of failure to state a claim, we will not address the Agency's alternative grounds for dismissal of claim 1 on the grounds of untimely EEO contact. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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 16, 2014
__________________
Date
2
0120141639
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141639