01a54766
12-16-2005
Glenn A. Yarborough, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital-Metro Area), Agency.
Glenn A. Yarborough v. United States Postal Service
01A54766
December 16, 2005
.
Glenn A. Yarborough,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital-Metro Area),
Agency.
Appeal No. 01A54766
Agency No. 4K-200-0083-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 14, 2005, 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 Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In his complaint, complainant alleged that
he was subjected to harassment and discrimination on the bases of race
(Caucasian) and disability when:
On January 22, 2005, he was instructed to bring documentation in support
of his emergency annual leave request;
On January 24, 2005, a supervisor called him at his home while he was
on approved leave;
On January 25, 2005, he was put on emergency placement, off-duty,
non-pay status, and
On February 16, 2005, he was not permitted to work.
The agency dismissed the complaint in its entirety. Specifically
with regard to claims 1 and 2, the agency determined that complainant
had failed to state actionable claims. Citing to the Labor Relations
Manual, the agency points out that its rules allow management to require
an employee to submit documents explaining why the employee must be
absent from work. Thus, when management instructed complainant to
bring documentation in support his emergency annual leave request,
it was within management's right and responsibilities. The agency
also found that claim 2 failed to state an actionable claim because
the fact that a supervisor called complainant at his home on his off
day did not cause complainant harm that affected a term, condition or
privilege of his employment. As for claim 3, the agency found that
it was moot. Complainant previously raised this claim in a grievance,
the settlement of which compensated complainant for the period he was in
off-duty status. The settlement also expunged the emergency placement
from his record. Therefore, the agency stated that as for claim 4, given
that the settlement eliminated the effects of the off-duty placement,
he cannot now argue that it harmed a term, condition or privilege of
his employment. It fails to state a claim. Moreover, the agency argued
that claim 4 is a collateral attack on the agency's failure to comply with
the grievance settlement and thus is unreviewable by the Commission.
The agency also analyzed the complaint as potentially raising a harassment
claim but determined that it failed to meet the necessary legal standard.
According to the agency, complainant's claims were not sufficiently severe
or pervasive to establish a hostile work environment as understood in
EEO law.
Complainant submits no statement on appeal. The agency requests that
we affirm its final decision.
Legal Analysis
Claims 1 and 2
EEOC's regulations authorize an agency to dismiss an EEO complaint
that fails to state a claim for which relief can be granted. See 29
C.F.R. � 1614.107(a) (2004). The standard that must be met to justify
a dismissal on this ground is similar to that required by the courts
under Fed. R. Civ. P. 12(b)(6). See Cobb v. Dep't of the Treasury,
EEOC Request No. 0597007 (Mar. 13, 1997). Moreover, our case law
requires that the complainant be �aggrieved,� meaning, he or she must
have �suffered direct and personal deprivation at the hands of the
employer.� Gilyard v. Dep't of Energy, Appeal No. 01A01550 (June 9,
2003) (citing Hobson v. Dep't of the Navy, EEOC Request No. 05891133
(Mar. 2, 1990)); see also Diaz v. Dep't of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994) (defining 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.). Under Section
107(a) the allegations in a complaint must be taken as true and all
reasonable inferences must be drawn in favor of the complainant. See id.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that no set of facts can be established that
would entitle the complainant to the relief sought in the complaint.
See id. (citing Conley v. Gibson, 355 U.S. 40, 45-46 (1957)).
We find no error in dismissing claims 1 and 2 for failing to state
actionable claims. We agree with the agency that it is management's
responsibility to require employees who are absent from work due to
medical emergencies to show documentary proof of the situation that
necessitated their absence. Such a requirement is reasonable in that
it permits the agency to oversee the workforce and its production goals
and thereby better manage its workload. The documentation requirement
as applied here certainly has not negatively affected the terms,
conditions or privileges of complainant's employment. Similarly, we
find that although receiving a call from a supervisor at one's home on
an off day may be unpleasant, it again has not harmed a term, condition
or privilege of complainant's employment. Consequently, both claims 1
and 2 were properly dismissed.
Claims 3 and 4
EEOC Regulation 29 C.F.R. �1614.107(a)(5) provides for the dismissal of a
complaint, or portions thereof, when the issue raised therein has become
moot, that is, where there is no reasonable expectation that the alleged
violation will recur, and interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation. See County
of Los Angeles v. Davis, 440 U.S. 625, 630 (1979); Kuo v. Dep't of the
Navy, EEOC Request No. 05970343 (July 10, 1998) Under such circumstances,
no further relief is available. We note that here, complainant has not
claimed compensatory damages.
We agree that the Step B Decision rendered claim 3 moot. The issue
in that grievance was whether there was �just cause for the Emergency
Suspension in Off-duty status dated 1/21/05.� Step B Decision of February
11, 2005. The dispute resolution team concluded that the suspension
was improper because its grounds were too vague and non-specific.
Consequently, the dispute resolution team ordered that the suspension be
expunged from complainant's record and that he be paid from January 25,
2005 �until he returns to work. [Complainant] will return to work no
later than [February 16, 2005].� Id. With claim 3, complainant in
essence attempts to resurrect an issue as an EEO complaint that was
previously settled through the grievance process. We agree with the
agency that the grievance settlement eradicated the effects of the
alleged discriminatory act, and we further find that it is likely to
recur. Thus, the claim is moot and was properly dismissed. See Ginete
v. United States Postal Serv., EEOC Appeal No. 01A40922 (Apr. 14, 2004)
(dismissing a claim that had been filed as a prior grievance where the
grievance was granted and the letter of warning at issue was rescinded).
Claim 4 arises from claim 3. He alleges that the agency refused to
permit him to return to work on February 16, 2005 as per the grievance
settlement. Clearly, at the core of the claim is complainant's belief
that the agency breached the settlement agreement. As such, we find that
this is a matter that is more appropriately through the grievance process.
The Commission has held on numerous occasions that an employee cannot
use the EEO complaint process to lodge a collateral attack on another
proceeding. See Nurruddin v. Nat'l Aeronautics & Space Admin., EEOC
Appeal No. 01A23148 (Sept. 30, 2004). Thus, complainant cannot use the
EEO process to dispute an action taken by the agency in breach of its
grievance settlement obligations. Claim 4 was properly dismissed.
Harassment
Lastly, where a complaint does not challenge an agency action or inaction
regarding a specific term, condition, or privilege of employment, the
claim may survive as evidence of harassment if it is sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Whether the
harassment is sufficiently severe to trigger a violation of EEOC statutes
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.
See Harris, 510 U.S. at 23; Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
Although complainant alleges that he has been subjected to �constant
harassment� �over the years� and submits a physician's statement
indicating that his behavioral problems are the �direct result of
harassment,� we find that the claims presented are not enough to rise
to the level of actionable harassment. The alleged acts are simply not
sufficiently severe or pervasive. We note that EEOC regulations are not
to be used as a �general civility code.� Rather, the regulations forbid
�only behavior so objectively offensive as to alter the conditions of
the victim's employment.� Onacle v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81 (1998); accord Vore v. Indiana Bell Telephone Co.,
32 F.3d 1167 (7th Cir. 1994) (noting that Title VII does not create a
right to work in a pleasant environment; merely one that is free from
discrimination�).
Accordingly, we affirm the agency's final decision dismissing
complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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 (Z1199)
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:
December 16, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations