0120112771
10-13-2011
Dwayne E. Lovell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Dwayne E. Lovell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120112771
Agency No. 4H-330-0112-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 28, 2011, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Clerk at the Agency’s Florida City Post Office in Florida City, FL.
On March 11, 2011, he filed a formal complaint which the Agency defined
as alleging it subjected him to discrimination based on his sex (male),
age (48), and reprisal (prior protected equal employment opportunity
(EEO) activity on August 2, 2009 and March 3, 2010 on EEO cases)1 when on
December 8, 2010, his manager confronted and threatened him in accusing
him of stealing coupons from the waste mail.
In EEO intake, Complainant wrote that on December 8, 2010, the manager
told him at least five times that she knew he was taking coupons
from waste mail; and threatened him by saying he could lose his job.
The Agency dismissed the complaint for failure to state a claim.
It reasoned that Complainant was not aggrieved, the incident did not
rise to the level of actionable harassment, and it would not reasonably
like deter EEO activity.
CONTENTIONS ON APPEAL
On appeal Complainant writes that the Agency’s ruling was based on
the events of one day, but in his complaint he wrote that he had been
harassed and threatened almost daily since December 2007. He writes
that he will submit supporting documentation. He also generally writes
that there have been breaches of settlement agreements.
In opposition to the appeal, the Agency urges the Commission to affirm
its dismissal.
ANALYSIS AND FINDINGS
In his complaint Complainant generally wrote that there has been a pattern
of harassment, threats, false accusations and breaches of EEO settlement
agreements almost daily since December 7, 2007. He did not identify the
incidents in his complaint or on appeal. Given this, we find, based upon
a review of the record, that the Agency properly defined the complaint
as concerning the threatening incident on December 8, 2010.2
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. 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, .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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
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 laws, we find that Complainant’s complaint fails
to state a claim. He is not aggrieved. The complaint regards one
confrontation, and Complainant does not contend the Agency took any steps
to discipline him or that he received discipline. Likewise, we find
the confrontation does not rise to the level of actionable harassment.
We also find that the confrontation would not reasonably likely
deter EEO activity. In Rivers v. United States Postal Service, EEOC
Appeal No. 01A52892 (Oct. 12, 2006), a complainant alleged that he was
discriminated against and harassed, in relevant part, based on reprisal
for prior protected EEO activity when (1) on two separate days he was
admonished for frequently using the restroom; and his restroom stays
were monitored, and (2) he received a threatening letter from a manager
suggesting he was not fully meeting expectations. The Commission found
this threatening activity would not reasonably likely deter EEO activity.
Complainant does not contend that his manager raised Complainant’s EEO
activity in the confrontation, and the most recent EEO activity cited
by Complainant occurred some nine months before. All this does not make
it reasonably likely Complainant would connect the confrontation to his
EEO activity, and hence be deterred from further EEO activity.
Accordingly, the Agency’s dismissal 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
October 13, 2011
__________________
Date
1 The Agency defined the reprisal basis for being for EEO activity on
the instant complaint, but a review of the record reveals it was for
the EEO activity set out above.
2 Complainant is advised that if he wishes to pursue his claim that
settlement agreements were breached, he should notify the Agency EEO
Director or designee of the breach(es), identifying the settlement
agreements breached and how they were breached. 29 C.F.R. § 1614.504.
Often the contact information on where to write is within the settlement
agreement.
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0120112771
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112771