0120103738
02-17-2011
Doris C. Cabrales, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Doris C. Cabrales,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120103738
Agency No. 1H-371-0014-10
DECISION
Complainant filed a timely appeal with this Commission from a final
Agency decision (FAD) dated August 16, 2010, dismissing 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.
BACKGROUND
At the time of her complaint, Complainant was a Building Equipment
Mechanic at the Nashville Processing & Distribution Center in Nashville,
TN. In her complaint, Complainant alleged that the Agency subjected
her to discrimination on the bases of race (Filipino), sex (female),
and reprisal for prior protected EEO activity:
1. when on May 18, 2010, she was subjected to a hostile work environment
by the Supervisor of Maintenance Operations (SDO) invading her space by
reaching over her while she was working on the computer doing required
training; and
2. when the Chief Steward, Tour II, on May 20, 2010, addressed
Complainant's lament about the above to the SDO, he replied "I don't
give a shit, let her do whatever she wants," and when the Chief Steward
added Complainant was bothered, the SDO said "I guess I'm just hung like
that."1
Complainant wrote that while she was sitting at a desk chair, the SDO,
who was diminutive, leaned over her head to read a list of acronyms/codes,
and while doing so his lower abdomen bumped the armrest of the chair
she was sitting in, and this made her very uncomfortable. Complainant
contended that he could have viewed the list in another cubicle.
The Agency dismissed the complaint for failure to state a claim.
It reasoned that it did not rise to the level of an actionable hostile
work environment. 29 C.F.R. � 1614.107(a)(1).
CONTENTIONS ON APPEAL
Complainant argues, in relevant part, that her complaint states a claim.
In opposition to the appeal, the Agency urges the Commission to affirm
the FAD.
ANALYSIS AND FINDINGS
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 Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993), the Supreme Court reaffirmed the holding of Meritor Savings
Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of
the complainant's employment. The Court explained that an "objectively
hostile or abusive work environment [is created when] a reasonable person
would find [it] hostile or abusive" and the complainant subjectively
perceives it as such. Harris, at 21-22. Thus, not all claims of
harassment are actionable. Where a complaint does not challenge an
agency action or inaction regarding a specific term, condition or
privilege of employment, a claim of harassment is actionable only if,
allegedly, the harassment to which the complainant has been subjected
was sufficiently severe or pervasive to alter the conditions of the
complainant's employment.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
Applying the above law, we find that Complainant does not allege matters
which are sufficiently severe or pervasive to alter the conditions of
her employment. While the SDO may have invaded Complainant's space,
leaning over her without touching her to read acronyms/codes was not
sexual or abusive. Further, the SDO expressing annoyance in reaction
to the Chief Steward, Tour II raising Complainant's lament with him,
even in combination with claim 1, does not rise to the level of a
hostile environment. The annoyance was expressed to the Chief Steward,
not Complainant. Further, we find that the events in the complaint
would not reasonably likely deter protected EEO activity.
The FAD 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
February 17, 2011
__________________
Date
1 In its FAD, the Agency did not capture claim 2. In her complaint,
Complainant referred to a statement by the Chief Steward, Tour II, which
she gave to the EEO counselor. On appeal, she provided a copy of the
statement, and complained it was not addressed.
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0120103738
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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