0120112587
12-22-2011
Warzell Booty, Sr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Warzell Booty, Sr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120112587
Agency No. 4G-770-0114-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 28, 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 Letter Box Mechanic at the Agency’s Post Office in Spring,
Texas. On March 7, 2011, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the bases of race
(African-American), religion (Baptist), color (Black), and in reprisal
for prior protected EEO activity when:
1. On February 1, 2011, the postmaster threatened him by asking if he
“wanted him to open up about what had happened” in the past; and
2. On February 3, 2011, his starting time was changed, and the way he
performed his duties was changed, including his being told not to go
into other stations.
The Agency dismissed the complaint, finding that: (1) Complainant was not
aggrieved by the postmaster’s isolated comment; and (2) that it was well
within management’s authority to change a starting time and direct an
employee how to perform his duties. The final decision noted that there
had been customer complaints about locks being changed, suggesting that
the new starting time and new directives were management’s response
to operational problems. This appeal followed, but Complainant did not
submit a statement in support of it.
ANALYSIS AND FINDINGS
Upon review, the record reveals that Complainant had been “put off
the clock” for four years and that was likely what the postmaster
was referring to when he asked about “opening up about the past.”
While we acknowledge that this invitation may have upset Complainant, we
find that this one comment was insufficiently severe and insufficiently
pervasive to affect the terms or conditions of his employment. Further,
we find no evidence to support a finding that the legitimate exercise
of management’s authority over day to day postal operations, i.e.,
setting start times and directing employees in the performance of duties,
rendered Complainant aggrieved.
Accordingly, with regard to his claim of race, color and religious
discrimination, we conclude that Complainant has not shown an injury
or harm to a term, condition, or privilege of employment for which
there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). However, we acknowledge the Commission’s
policy of considering reprisal claims with a broad view of coverage.
See Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 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. Even under this less stringent
standard, we conclude that management’s actions in these circumstances
cannot be considered reasonably likely to deter protected activity.
We thus conclude that Complainant has not stated an actionable claim
of reprisal.
CONCLUSION
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
December 22, 2011
__________________
Date
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0120112587
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112587