0120103416
12-21-2010
Ronnie Deadrick, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Ronnie Deadrick,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120103416
Agency No. 4H-370-0050-10
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD) dated May 28, 2010, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to
discrimination on the bases of race/color (black), sex (male), disability,
age, and reprisal for prior protected EEO activity when on February 21,
2010, a co-worker shoved a mail cart into the back of him, and after
notifying management, he got no response.
The Agency dismissed the complaint for failure to state a claim.
It reasoned that Complainant was not aggrieved.
CONTENTIONS ON APPEAL
On appeal, Complainant makes no comment. In opposition to the appeal,
the Agency argues that Complainant untimely filed his appeal. It contends
that Complainant received the FAD on June 4, 2010, but did not file his
appeal until August 13, 2010, beyond the 30 calendar day time limit to
do so.
ANALYSIS AND FINDINGS
The time limit for Complainant to file his appeal was 30 calendar days
after receiving the FAD. 29 C.F.R. � 1614.402(b). When the last day
to file falls on a Saturday, Sunday or Federal holiday, the time limit
to file is extended to the next business day. 29 C.F.R. � 1614.604(d).
Complainant's notice of appeal, which is dated Monday June 28, 2010,
was mailed to the Commission's prior address, and then forwarded to our
current address. The FAD gave appeal rights to our current address,
but notice of appeal form complainant used was pre-printed with our prior
address. The FAD indicated that a notice of appeal form was attached.
In correspondence acknowledging the appeal, the Commission advised the
parties that the appeal was filed on August 13, 2010. After a closer
review of the postmark we find it illegible. Our office stamped the
appeal as received on August 18, 2010. It is likely that the Agency
provided Complainant with the notice of appeal form with the outdated
Commission mailing address.1 This caused forwarding and pick-up delays.
Given all this, we find that the appeal was filed on June 28, 2010, that
it was timely filed, and accept the appeal. 29 C.F.R. � 1614.405(a).
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).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings 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 the 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, 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.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
Applying the above regulations and case law, we find that Complainant's
complaint fails to state a claim. Being bumped by a cart does not rise
to the level of actionable harassment. Also, we find that this matter
would not reasonable likely deter protected EEO activity.
Accordingly, the FAD 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
December 21, 2010
__________________
Date
1 We note that the Agency's opposition to the appeal was directed in
writing to the Commission's prior address.
??
??
??
??
2
0120103416
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120103416