0120082796
08-26-2008
Douglas K. Hinton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Douglas K. Hinton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082796
Agency No. 4G-770-0413-07
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 8, 2008 final decision concerning his equal
employment opportunity (EEO) complaint alleging 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.
During the relevant time, complainant was employed as a City Carrier at
the agency's North Shepherd Station in Houston, Texas.
On November 19, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that he was discriminated against on the
basis of race (Caucasian) when:
(1) beginning June 20, 2007 and continuing, he was subjected to a hostile
work environment in that he had been forced to carry overtime;
(2) his requests for union steward have been denied and delayed, and
his grievances have not been processed properly; and
(3) his request for official EEO time has been denied, delayed, and
diminished and his EEO representative has been threatened with discipline
for filling out the EEO form.
On December 7, 2007, the agency issued a partial dismissal. The agency
accepted claim (1) for investigation. The agency dismissed claim (2)
and a portion of claim (3) concerning complainant's EEO representative
being threatened with discipline for filling out the EEO form pursuant
to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The agency
dismissed a portion of claim (3) concerning complainant's claim that his
request for official EEO time has been denied, delayed and diminished
pursuant to 29 C.F.R. � 1614.107(a)(8) on the grounds that complainant
claimed dissatisfaction with the processing of his EEO complaint.
At the conclusion of the investigation concerning claim (1), complainant
was provided with a copy of the report of the investigation and notice
of the right to request a hearing before an EEOC Administrative Judge or
a final decision within thirty days of receipt of the correspondence.
Complainant did not respond. On May 8, 2008, the agency issued the
instant final decision.
In its May 8, 2008 final decision, the agency found no discrimination
concerning claim (1). Specifically, the agency found that complainant
failed to establish a prima facie case of race-based harassment.
The agency found that complainant failed to prove that he was subjected
to harassment sufficiently severe or pervasive so as to render his work
environment hostile. Specifically, the agency determined that the
responsible management officials followed Article 8 of the agreement
between the union and agency in regard to the assignment of involuntary
overtime by assigning complainant to work overtime based on the needs
of the service.
On appeal, complainant submits a copy of his EEO representative's
memorandum dated June 5, 2008. Therein, the EEO Representative alleged
that complainant requested to see him as his representative "for at
least three weeks prior to 6-5-08. [Complainant] was allowed to met with
me today 6-5-08." Complainant also submits a copy of his two requests
dated May 22, 2008 and June 5, 2008 for EEO counseling concerning the
instant complaint, which requests were denied.
Claim (1)
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion
is unlawful, if it is sufficiently severe or pervasive. Wibstad
v. United States Postal Service, EEOC Appeal No. 01972699 (August 14,
1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). It is also well-settled that harassment based on an
individual's prior EEO activity is actionable. Roberts v. Department
of Transportation, EEOC Appeal No. 01970727 (September 15, 2000).
A single incident or group of isolated incidents will generally not
be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether
the harassment is sufficiently severe to trigger a violation of Title
VII must be determined by looking at all of the circumstances, including
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 v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, we find that the incidents complained of, even if
true, do not rise to the level of a hostile work environment.
After a review of the record in its entirety, including consideration
of all statements on appeal, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision concerning
claim (1) because the preponderance of the evidence of record does not
establish that discrimination occurred.
Claim (2) and portion of claim (3) (complainant's EEO representative
being threatened with discipline for filling out the EEO form)
In its December 7, 2007 partial dismissal, the agency dismissed claim (2)
and a portion of claim (3) concerning complainant's EEO representative
being threatened with discipline for filling out the EEO form pursuant to
29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Regarding claim
(2), we find that the agency properly dismissed it for failure to state
a claim. The Commission has held that a complainant should not use the
EEO complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30,
1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC Request
No. 05930106 (June 25, 1993). In the instant matter, we find that the
proper forum for complainant to raise claim (2) is in the grievance
process.
Regarding portion of claim (3) concerning complainant's EEO representative
being threatened with discipline for filling out an EEO form, we find
that the agency properly dismissed it for failure to state a claim
because complainant was not aggrieved. Specifically, we find that
complainant failed to demonstrate that he suffered harm to a term,
condition or privilege of his employment.
Accordingly, the agency's dismissal of claim (2) and a portion of claim
(3) concerning complainant's EEO representative being threatened with
discipline for filling out an EEO form for failure to state a claim is
AFFIRMED.
Portion of claim (3) (complainant's request for official EEO time has
been denied, delayed and diminished)
In its December 7, 2007 partial dismissal, the agency dismissed a portion
of claim (3) concerning complainant's claim that his request for official
EEO time has been denied, delayed and diminished pursuant to 29 C.F.R. �
1614.107(a)(8) on the grounds that complainant claimed dissatisfaction
with the processing of his EEO complaint.
EEOC Regulation 29 C.F.R. � 1614.605(b) provides that if the complainant
is an employee of the agency, he or she shall be given a reasonable amount
of official time, if otherwise on duty, to prepare a complaint and to
respond to agency and EEO requests for information. The Commission has
stated that an allegation pertaining to the denial of official time states
a separately-processable claim alleging a violation of the Commission's
regulations, without requiring a determination of whether the action
was motivated by discrimination. See Edwards v. United States Postal
Service, EEOC Request No. 05960179 (December 23, 1996). Essentially,
the Commission has held that it has the authority to remedy a violation
of 29 C.F.R. � 1614.605 without a finding of discrimination. Id.
The Commission held that such a claim should not be processed in
accordance with 29 C.F.R. � 1614.108, since the focus is not on the
motivation but rather the justification of why the complainant was denied
a reasonable amount of official time. Id.
In the instant matter, there is insufficient information in the record
as to whether complainant was denied official time, and for what reason.
Accordingly, the agency's decision in this regard was improper, and
is hereby VACATED. Portion of claim (3) is REMANDED to the agency for
further processing in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall investigate the issue of whether complainant was
denied a reasonable amount of EEO official time. The agency shall include
in the record documentation reflecting how much time was requested,
for what stated purposes, how much time was granted, if any, and the
justification for the denial of the requested time.
2. The agency shall notify complainant of the opportunity to place into
the record any evidence supporting the claim that he was denied official
time.
3. Within thirty (30) calendar days of the date that this decision becomes
final, the agency shall issue a decision as to whether complainant was
denied a reasonable amount of official time. The agency's decision shall
provide appeal rights to the Commission.
A copy of the decision must be submitted to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (T0408)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 26, 2008
Date
7
0120082796
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036