0120112100
08-04-2011
Jeffrey A. Daniel, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Jeffrey A. Daniel,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120112100
Agency No. 4H370002010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 21, 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.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier at the Agency’s Antioch Post Office facility in
Antioch, TN. On December 17, 2010, Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination on the basis
of reprisal for prior protected EEO activity under an EEO statute that
was unspecified in the record for the following three incidents.
First, Complainant describes an alleged incident in which his Supervisor
conducted a safety procedure meeting on September 28, 2010. At the
meeting, a co-worker (Co-worker 1) asked if they should do a certain
procedure the way Complainant did it, implying that he performed the
procedure well. After the meeting, the Supervisor allegedly went
to Co-worker 1 and chastised her for making the comment during the
meeting and told Co-worker 1 that Complainant was far from a perfect
employee and would not have a job if he was not a veteran. In another
conversation with Co-worker 1, the Supervisor allegedly stated that she
was not concerned about Complainant’s EEO complaint. Complainant finds
these incidents unprofessional and retaliatory.
The second incident Complainant alleges occurred on November 28, 2010.
He alleges that the same Supervisor “forcefully bumped into [him]”
without acknowledging him. He said, “Excuse you!” to her, to which
she allegedly replied, “Oh yes, excuse me.” When he reported this
incident, she allegedly claimed she did not see him because she was not
wearing her glasses. Complainant states that this was a “shameful”
example of retaliation.
The third allegedly retaliatory incident involves an undelivered piece
of mail. Complainant claims that on November 3, 2010, he was ending his
shift and found an undelivered piece of first class mail. As he was about
to leave, Complainant contends that he should have been able to notify
a supervisor, who would then see that the mail was delivered by another
carrier. However, the same Supervisor allegedly started “chiding” him
about the mail and said that he was willfully delaying first class mail.
The Supervisor also allegedly did not give Complainant the phone number
of the postmaster when he asked for it during the incident. While the
Supervisor was chiding Complainant, another mail carrier allegedly came
over and also started to lecture Complainant about the undelivered piece
of mail. Complainant states that he told this other carrier to shut up.
Complainant argues that it was retaliatory and created a hostile work
environment when the Supervisor spoke to him about the mail piece in front
of everyone and allowed the other carrier to chime in without intervening.
The Agency dismissed Complainant’s claims pursuant to 29 C.F.R. §
1614.107(a) for failure to state a claim. The Agency argued that
Complainant was not an “aggrieved employee” because he had not
suffered a present harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy. The Agency
also argued that the Supervisor’s actions did not rise to the level
of harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant repeats his contention that all of the incidents
were in retaliation for Complainant’s prior EEO complaint against
his Supervisor. The Agency did not file a brief on appeal.
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;
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).
Regarding complainant's claim of reprisal, the Commission has stated
that adverse actions need not qualify as "ultimate employment actions"
or materially affect the terms and conditions of employment to constitute
retaliation. Lindsey v. United States Postal Service, EEOC Request
No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003
(May 20, 1998)). Instead, the statutory retaliation clauses prohibit
any adverse treatment that is based upon a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity. Id.
The Commission has repeatedly found that remarks or comments unaccompanied
by a concrete agency action are not a direct and personal deprivation
sufficient to render an individual aggrieved for the purposes of
Title VII. See Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Service,
EEOC Request No. 05940695 (February 9, 1995). To the extent that
complainant is alleging that the remarks constituted harassment in
retaliation for engaging in prior, protected activity, the Commission
notes that complainant will be considered aggrieved if the remarks are
reasonably likely to deter protected activity. Enforcement Guidance on
Retaliation, EEOC Notice No. 915.003 (May 20, 1998).
The Commission has held that criticism of an employee’s work and
yelling at an employee, without more, are not reasonably likely to deter
protected activity. See Wong v. United States Postal Service, EEOC Appeal
No. 0120110092 (February 15, 2011) (explaining that incidents in which
the complainant was chased out of his area, yelled at and criticized
would not reasonably deter protected activity). In the instant case,
Complainant does not even allege he was yelled at, but merely criticized
for his handling of the undelivered mail. In one of the incidents,
Complainant did not even hear the criticism directly.
We also find that the incident in which the Supervisor bumped into
Complainant was not reasonably likely to deter protected activity.
We find this situation more minor than the incidents described in
Rivota v. United States Postal Service. See Rivota v. United States
Postal Service, EEOC Appeal No. 0120102786 (September 21, 2010).
In that case, the complainant’s supervisor physically blocked the
complainant from entering the supervisor’s office and made contact with
the complainant’s hand. See id.. In another incident, a different
supervisor also blocked the complainant’s path and hit him with her
shoulder. See id. The Commission held that the complaint failed to show
that these acts, which were done when the complainant was placed off the
clock and tried to return to work, were not reasonably likely to deter
him or others from engaging in protected activity. See id. We find
that the event described by Complainant is not retaliatory because it
appears to be an isolated event and did not involve a physical struggle
as described in Rivota.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint 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
August 4, 2011
__________________
Date
2
0120112100
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112100