0120114303
03-09-2012
James Rohan, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
James Rohan,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120114303
Agency No. 4C190007911
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 25, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Customer Services Supervisor at the Agency’s Bustleton Post Office
facility in Philadelphia, PA. On June 30, 2011, Complainant filed a
formal complaint alleging that the Agency subjected him to discrimination
on the bases of race (Not Specified), sex (male), and disability (Weak
Heart Muscle/Atrial Fibrillation) when he was forced accept a PTF Clerk
position effective June 4, 2011.1
On August 25, 2011, the Agency issued a final decision dismissing
the complaint for failure to state a claim in accordance with EEOC
Regulation 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency
contends that during the course of the investigation of the instant
matter, Complainant submitted a letter indicating that the downgrade was
never an issue for him as it was voluntary. In that regard, the Agency
determined that Complainant had chosen not to pursue an appeal of the
Agency’s determination that he failed to state a claim. Consequently,
the Agency dismissed the matter entirely.
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, 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, 1614.106(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. Dep't of the Air Force,
EEOC Request No. 05931049 (Apr. 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Sav. 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 a 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, supra 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.
A complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the complainant cannot prove a set of facts in
support of the claim which would entitle the complainant to relief. The
trier of fact must consider all of the alleged harassing incidents and
remarks, and considering them together in the light most favorable to the
complainant, determine whether they are sufficient to state a claim. Cobb
v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
The record contains a copy of documentation from Complainant to the Agency
dated July 24, 2011 in which he challenges the Agency’s identification
of his allegations of discrimination. Therein, Complainant appears to
take issue with the Agency’s characterization of the instant matter
as a “downgrade.” Complainant states,
“I did nothing wrong to be downgraded. No discipline in my file at all.
Downgraded is not on my transfer from a Customer Service Supervisor to
a PTF Clerk [.] I was forced into this position after they way I was
treated in Phila (sic) and want to continue my career as a supervisor
in the AO’s where I was previously.”
Specifically, Complainant concedes that he elected to accept the PTF
Clerk Position, effective, June 4, 2011. However, Complainant argues
that he was forced to accept the position as a result Agency conduct.
A review of the EEO Counselor’s report in this matter discloses that
Complainant alleged that he was “bullied into taking a PTF position
effective June 4, 2011.” In addition, the EEO Counselor’s report
indicates that on April 29, 2011, an Agency official (Official) told
Complainant that he heard that Complainant did not want to work at the
Agency’s Fox Chase station. The Official reported this information
to Complainant’s supervisor. Complainant advised his supervisor
that he would need more than one day of training before he would
consider taking a position at the Fox Chase Station. According to the
record, Complainant’s supervisor advised Complainant that she believed
Complainant would be an asset to the Fox Chase station and suggested that
he take a PTF Clerk position there. The record further indicates that
on April 30, 2011, Complainant emailed the Agency’s District Manager
and the Manager of Operations Programs Support requesting a detail to an
associate office position. Complainant received no reply to his email.
Thereafter Complainant alleges that Official then advised him that he
would likely be assigned to the “worst zone; 15.” According to the
Complainant he believed that management was setting him up to fail.
Consequently, he determined that because he did not want to remain at
his current location in Philadelphia, he believed that his only option
was to accept a PTF position effective June 4, 2011.
In his statement on appeal in the instant matter, Complainant maintains
that he has repeatedly advised the Agency that it has failed to correctly
identify his discrimination claims. Upon review, the Commission finds
that the Agency’s dismissal for failure to state a claim was improper.
In reaching this conclusion, the Commission finds that Complainant has
shown an injury or harm to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Dep’t of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Specifically, a thorough
review of the record discloses that Complainant alleges that he believes
he was bullied into taking a PTF Clerk position effective June 4, 2011.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint is vacated. The complaint is hereby remanded to the Agency for
further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 (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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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.
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
March 9, 2012
__________________
Date
1 The Agency indicates that Complainant also raised allegations that he
was placed in a leave without pay (LWOP) status on April 19, 2011 and
that he was not provided the opportunity to bid for a position at the
Elkin Park Post Office. The record further indicates that the Agency
determined that these additional issues are non-mixed issues and therefore
elected to handle them separately in Agency Case No. 4C-190-0058-11.
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0120114303
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114303