0120123441
01-24-2013
Gerald E. Juels, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Gerald E. Juels,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120123441
Agency No. 4E570003112
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated July 30, 2012, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Grand Forks Post Office facility in Grand Forks, North Dakota. On July 9, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (Spondylolisthesis) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. From March 19 through June 30, 2012, Complainant was denied "official time" for EEO Case No. 4E-570-0009-12; and
2. On June 22, 2012, Complainant was harassed by his Supervisor1.
The Agency dismissed the complaint on the grounds that claim 1 was a spin-off complaint and claim 2 failed to state a claim.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(8) provides, in relevant part, that an agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not a new complaint. See EEOC - Management Directive 110 (as revised Nov. 9, 1999) 5-23, 5-25 to 5-26. Complainant alleges that the Agency denied him official time "to prepare obligations [sic] for EEO Case # 4E-570-0009-11" which is an earlier-filed complaint. The Commission therefore finds that the Agency's dismissal of Complainant's complaint for alleging dissatisfaction with the processing of a prior complaint was proper.
The Commission notes, however, that Complainant has shown on appeal that the Agency filed a brief before the EEOC Administrative Judge (AJ) in his other complaint, under Agency case number 4E-570-0009-11, asking the AJ to dismiss his motion to amend his complaint to include the issue of denial of official time. Thus the Agency in the instant complaint is arguing that Complainant's complaint should be dismissed on the grounds that such claims must be addressed in the prior complaint, while in the prior complaint the Agency is arguing that the same claim should be dismissed by the AJ on the grounds that it states the same claim as in the instant complaint. It therefore appears that the Agency is seeking to deny Complainant the right to raise the issue at all. While the Commission may not address the merits of the prior complaint under Agency number 4E-570-0009-11 and EEO number 443-2012-0036X, the Commission reminds the Agency that it correctly found that complaints concerning the dissatisfaction with the EEO process must be raised within the underlying complaint. See MD 110, supra.
With regard to claim 2, to the extent Complainant claims harassment when his supervisor2 shouted to him by name in front of other coworkers saying "[Complainant], are you going to help pull the machine?", asked Complainant if he was threatening her after Complainant told her "you would be better off if you focused on your own work first before telling other people what to do. They have their own priorities to do. It may work out better for you," and said about Complainant "he didn't listen to a fucking word I said," we note that 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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
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. 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, such as the complaint at issue here, 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.
Following a review of the record we find that the actions complained of were insufficiently severe or pervasive to constitute harassment and we AFFIRM the Agency's Dismissal.
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
January 24, 2013
__________________
Date
1 This claim does not appear in either the informal or Formal complaints, nor does the record show Complainant sought to amend his complaint to include this claim. The Agency, however, addressed it in its Dismissal, and so did Complainant on appeal.
2 The Agency states that this person was Complainant's supervisor but on appeal, Complainant describes her as "a non-career employee" and does not indicate she is a supervisor.
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0120123441
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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