0120102609
11-12-2010
Lisa L. Cassidy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Lisa L. Cassidy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120102609
Agency No. 4F920005610
DECISION
On June 4, 2010, Complainant filed a timely appeal with the Commission
from the Agency's May 4, 2010 dismissal of her 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. For the
following reasons, the Commission AFFIRMS the Agency’s dismissal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Postmaster at the Post Office facility in La Quinta, California.
Complainant states that between March 3 and 8, 2010, she made numerous
attempts to reach her supervisor, the Acting Manager of Post Office
Operations (AM), but received no response. On March 8, 2010, Complainant
called AM’s personal cell phone number, which was posted at the La
Quinta Post Office. AM answered the call and began yelling “how
dare you call me on my personal cell phone, I demand to know right now
how you got this number…I will not conduct post office business on my
personal number and you are not to call me on my personal cell phone!”
Complainant states that she apologized and called AM back on her business
cell phone but she did not answer.
On April 21, 2010, Complainant filed an EEO complaint alleging that the
Agency subjected her to discrimination in reprisal for prior protected
EEO activity when on March 8, 2010, the Acting Manager, Post Office
Operations yelled at her in a humiliating, abusive, and degrading manner.
In its final decision, the Agency dismissed Complainant’s complaint for
failure to state a claim in accordance with 29 C.F.R. § 1614.107(a)(1).
Specifically, the Agency determined that Complainant was not an aggrieved
employee within the purview of the EEOC regulations. The Agency found
that the alleged yelling incident was not sufficiently severe or pervasive
to establish a claim of discriminatory harassment. Additionally, the
Agency found that the conduct in this case, viewed in context of the
totality of the circumstances, and considering the nature and frequency
of the alleged offensive encounter, did not subject Complainant to any
adverse action or deny Complainant any entitlement in relation to a term,
condition, or privilege of employment as a result of her allegation.
As a result, the Agency dismissed the complaint.
On appeal, Complainant presents extensive arguments regarding the
Agency’s dismissal. Specifically, Complainant contends that she was
aggrieved and the Agency’s actions were more than a petty slight or
trivial annoyance. Complainant asserts that the agency wrongfully
dismissed her complaint because the alleged yelling incident is in
retaliation for her prior opposition to discriminatory actions by
management. Accordingly, Complainant requests that the Commission
reverse the Agency’s dismissal. The Agency urges the Commission to
affirm its dismissal.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1), provides,
in revelant 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. Dep’t of
the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Moreover, the
Commission has repeatedly found that remarks or comments unaccompanied by
a concrete Agency action usually are not a direct and personal deprivation
sufficient to render an individual aggrieved for the purpose of Title VII.
See Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996);
Henry v. U. S. Postal Serv., EEOC Request No. 05940695 (Feb, 9, 1995).
However, the anti-retaliation provisions of the employment discrimination
statutes seeks to prevent an employer from interfering with an
employee’s efforts to secure or advance enforcement of the statutes’
basic guarantees, and are not limited to actions affecting employment
terms and conditions. Burlington N. and Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006). To state a viable claim of retaliation, Complainant must
allege that: 1) she was subjected to an action which a reasonable employee
would have found materially adverse, and 2) the actions could dissuade a
reasonable employee from making or supporting a charge of discrimination.
Id. While trivial harms would not satisfy the initial prong of this
inquiry, the significance of the act of alleged retaliation will often
depend upon the particular circumstances. See also EEOC Compliance
Manual, No. 915.003 (May 20, 1998) (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 states a claim).
In the instant case, there is no evidence in the record to show that
Complainant was subjected to any adverse action or that she was denied any
entitlement in relation to a term, condition or privilege of employment as
a result of her allegation. Further, the statutory retaliation clauses
prohibit any adverse treatment that is based upon retaliatory motive and
is reasonably like to deter the charging party or others from engaging
in protected activity. However, reviewing the totality of the facts
surrounding this alleged incident, there are no facts to suggest that
Complainant was subjected to any adverse treatment or that the alleged
incident would deter a reasonable person from exercising her rights
through the EEO process.
To the extent that Complainant alleges that she was subjected to a hostile
or abusive work environment, the Commission notes that harassment of
an employee that would not occur but for the employee’s race, color,
sex, national origin, age, disability, or religion is unlawful, if it is
sufficiently severe or pervasive. Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 116 (2002), quoting Harris v. Forklift Sys. Inc., 510
U.S. 17, 21-22 (1993). 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.
A single incident or group of isolated incidents will generally not be
regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); see
Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July
12, 1996); Jewell v. U.S. Postal Serv., EEOC Request No. 0120092132
(June 22, 2010). The trier of fact considers 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. Harris, at 23.
After a careful review of the record, the Commission finds that
Complainant has failed to state a claim of actionable harassment.
Specifically, the Commission finds that the alleged yelling incident,
even if proven true, would not establish harm sufficiently severe or
pervasive to rise to the level of a hostile work environment. Further,
Complainant has not alleged facts establishing that she was subjected
to a harm or loss with respect to a term, condition, or privilege
of employment; nor that the alleged incident would deter a reasonable
person from exercising her rights through the EEO process. As such, the
Commission affirms the Agency’s dismissal of Complainant’s complaint
for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a) (1).
CONCLUSION
Accordingly, the Commission finds that the Agency's dismissal of the
instant complaint for failure to state a claim 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 tends 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 (Nov. 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
November 12, 2010
Date
2
***Appeal number TX***
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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