0120111383
05-26-2011
Ora L. Ralph, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Ora L. Ralph, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120111383
Agency No. 1C-401-0009-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated December 22, 2010, dismissing a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Electronic Technician
at the Agency’s Louisville Processing and Distribution Center, in
Louisville, Kentucky.
On October 25, 2010, Complainant initiated EEO Counselor contact. Informal
efforts to resolve his concerns were unsuccessful. On December 2, 2010,
Complainant filed a formal EEO complaint alleging he was the victim of
unlawful employment discrimination on the bases of sex (male), religion
(unspecified), disability (unspecified), age (44), and in reprisal for
prior protected activity when:
1. in December 2009, Complainant’s supervisor told him he was not
allowed in the MPE shop;
2. on March 5, 2010, Complainant’s supervisor told him to “get the
hell off the machine;”
3. on October 22, 2010, Complainant’s supervisor followed him into
the restroom and peeked through the crack in the stall at Complainant,
and then yelled at him when he left the restroom; and
4. on an unspecified date Complainant’s supervisor gave him a discussion
about being late for work.
On December 22, 2010, the Agency issued a final decision dismissing
the complaint in its entirety. The Agency dismissed allegations 1
and 2 on the grounds of untimely EEO Counselor contact, pursuant to 29
C F R § 1614.107 (a) (2). Specifically, the Agency determined that
Complainant’s initial EEO Counselor contact in October 2010 was well
beyond forty-five days after the alleged discriminatory events occurred.
The Agency also dismissed all four claims, pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim, finding that the alleged
incidents in allegations 1 - 4 were not sufficiently severe or pervasive
to state a claim of harassment. The instant appeal followed.
ANALYSIS AND FINDINGS
Allegations 1 and 2: Untimely EEO Counselor Contact
The Agency improperly dismissed these claims on the grounds of untimely
EEO contact. In dismissing these allegations, the Agency was improperly
fragmenting the complaint into four separate independent claims rather
than a single claim of a discriminatory hostile work environment
supported by four factual allegations. The Commission has held that
“because the incidents that make up a hostile work environment claim
collectively constitute one unlawful employment practice, the entire
claim is actionable, as long as at least one incident that is part of
the claim occurred within the filing period. This includes incidents
that occurred outside the filing period that the [Complainant] knew or
should have known were actionable at the time of their occurrence.”
EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (revised
July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 117 (2002)).
The record reflects that some of the incidents proffered by Complainant
in support of his hostile work environment claim occurred within
the forty-five day period preceding Complainant’s October 25, 2010
initial EEO contact, as discussed above. As a fair reading of the
record reflects that the matters identified in allegations 1 and 2 are
part of this claim, we find that the Agency improperly dismissed them
on the grounds of untimely EEO Counselor contact.
Failure to State a Claim
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 Complainant has allegedly been subjected was sufficiently severe
or pervasive to alter the conditions of Complainant’s employment. A
complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that Complainant cannot prove a set of facts
in support of the claim which would entitle him 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. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997); Miller v. Department of the Treasury, EEOC Request
No. 05A10338 (August 15, 2002).
As already noted, in assessing whether Complainant has set forth an
actionable claim of harassment, the conduct at issue must be viewed in
the context of the totality of the circumstances, considering the nature
and frequency of offensive encounters and the span of time over which the
encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance
on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19,
1990). However, as noted by the Supreme Court in Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.”
Following a review of the record, the Commission finds that the complaint
fails to state a viable claim of hostile work environment harassment.
The acts alleged were isolated in nature and, even if proven true, would
not be sufficiently severe to alter the conditions of Complainant’s
employment. As such, Complainant has not alleged that he suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
Accordingly, we AFFIRM the Agency’s dismissal decision.
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
May 26, 2011
__________________
Date
2
0120111383
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013