0120171622
06-26-2017
Marvin D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marvin D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120171622
Agency No. 4F956003317
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 2, 2017, 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 Clerk at the Agency's Woodward Park Station facility in Fresno, California. On February 9, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Asian), national origin (Pacific Islander), sex (male), religion (Shamanism), and color (Yellow) when on November 3, 2016, he was advised by his supervisor to notify him before going to the restroom and that he was not allowed to use the restroom until 1.5 hours after he had clocked-in.2
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency stated there was no persuasive evidence in the record that Complainant had been aggrieved by suffering a personal loss or harm with respect to a term, condition, or privilege of employment because of the alleged incident. Also, the Agency stated that the incident complained of was not sufficiently severe nor pervasive enough to create a discriminatory hostile or abusive working environment.
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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). 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. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). However, it is well-settled that, unless the conduct is very severe, a single incident or a group of isolated incidents will not be regarded as creating a discriminatory work environment. See James v. Dep't of Health and Human Services, EEOC Request No. 05940327 (Sept. 20, 1994); Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982).
In the instant complaint, we find that Complainant failed to show that he suffered harm with respect to the terms, conditions or privileges of his employment as a result of being told by his supervisor that he needed to notify him before going to the restroom and that he was not allowed to use the restroom until 1.5 hours after he had clocked-in. Complainant does not allege that he was subjected to any discipline, monetary loss, changes in his hours, wages, or any other terms or conditions of employment. Therefore, standing alone, Complainant fails to state a claim.
Additionally, even if proven to be true and viewed in a light most favorable to Complainant, the alleged incident was too isolated and insufficiently severe to establish a hostile work environment. Complainant alleges only a single incident of harassing conduct and does not allege that this conduct continued beyond the one incident on November 3, 2016. Further, Complainant being told that he was to notify his supervisor before using the restroom and that he was not allowed to use the restroom for 1.5 hours after clocking in is not sufficiently severe to alter the conditions of employment. Therefore, the alleged incident was too isolated and insufficiently severe to establish a hostile work environment.
The Commission finds that Complainant's claim was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim because Complainant failed to show that he suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy and the alleged incident was too isolated and insufficiently severe to establish a hostile work environment.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___6/26/17_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 According to the EEO Counselor's report, Complainant's supervisor indicated that Complainant was not told that he could not use the restroom. Complainant's supervisor stated that he informed all employees that they were needed at their assignments for the first hour after clocking-in to assess the daily operation and that if they were going to leave their assigned area they needed to notify management so that their assignment could be covered while they were gone. For purposes of this decision, we are presuming that Complainant's version of these events is correct.
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