0120113930
11-06-2012
James Eckenrode, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
James Eckenrode,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120113930
Agency No. 1K201001211
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 19, 2011, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clerk at the Agency's Brentwood Road facility in Washington, DC.
On May 31, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age (47) when:
1. On or about February 23, 2011, he was "bumped" to another work assignment and
2. On or about February 23, 2011, his supervisor used his middle finger to "shoot [Complainant] the bird."
On May 19, 2011, the Agency issued a final decision dismissing the complaint pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency determined that Complainant failed to demonstrate that he suffered harm with respect to the terms and conditions of his employment when he was moved to another work assignment (claim 1) and when his supervisor made a derogatory hand gesture toward him (claim 2). Specifically, the Agency argued concerning claim 1 that while Complainant was often asked to work another assignment within his craft, it was an acceptable practice as provided by Agency policy. With respect to claim 2, the Agency determined that the alleged conduct of Complainant's supervisor did not render Complainant aggrieved, nor did it rise to the level of a hostile work environment.
This appeal followed.
ANALYSIS AND FINDINGS
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. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Upon review, we find that the Agency properly dismissed Complainant's complaint for failure to state a claim. Concerning claim 1, the Agency determined that Complainant was moved to different assignments within his craft contending that they amounted to routine work assignments and instructions which do not rise to the level of discriminatory harassment and do not create a hostile work environment. Regarding claim 2, the Agency determined that Complainant failed to demonstrate that he suffered any adverse action as a result of the alleged conduct of his supervisor. Even if the claims are proven to be true and are viewed in a light most favorable to Complainant, the actions of which Complainant complains do not state a cognizable claim of a hostile work environment. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the victim's employment. See Harris, supra. Here, the actions of which Complainant complains simply do not rise to the level of an actionable claim. Moreover, on appeal, Complainant raises no argument regarding the Agency's dismissal of his complaint for failure to state a claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's dismissal of Complainant's complaint.
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.
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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 6, 2012
__________________
Date
2
0120113930
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113930