0120114160
02-09-2012
Pedrito Janolino, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Pedrito Janolino,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120114160
Agency No. 4F940006011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 1, 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 City Letter Carrier at the Agency’s Pine Station facility in San
Francisco, California.
On July 15, 2011, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the bases of race (Asian),
national origin (Filipino), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when on April 7, 2010
he was harassed when his supervisor yelled at him and said “What’s
wrong with you? Don’t you speak English?”
In his formal complaint, Complainant explained that he was confused by
instructions given to him by his supervisor and went to speak to his
union representative. The supervisor came over and wanted to know
why he was speaking to the union representative, and then yelled at
him. Complainant states he worked for 17 years with the Agency. Further,
in his formal complaint, Complainant alludes to being harassed since
2008, and mentions an earlier EEO informal complaint.
In its decision, the Agency dismissed the matter for failure to state
a claim. The Agency notes that Complainant discussed only the April 7,
2011 incident with the EEO counselor. In addition, the Agency noted
that Complainant had initiated an EEO complaint in November 2010,
referencing an October 2010 incident and did not mention a history
of being harassed. The Agency stated that Complainant withdrew that
complaint in January 2011.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency
shall accept a complaint from an 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). If complainant cannot establish that s/he is aggrieved,
the agency shall dismiss a complaint for failure to state a claim.
The Commission has held that where, as here, a complaint does not
challenge an agency action or inaction regarding a specific term,
condition, or privilege of employment, the claim of harassment may
survive if it alleges conduct that is sufficiently severe or pervasive
to alter the conditions of the complainant’s employment. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The Commission finds
that complainant’s allegations are insufficient to state a claim of a
hostile work environment. As noted by the Agency, Complainant did not
discuss any other incidents with the EEO counselor, nor did he raise
those incidents in his earlier EEO activity. Additionally, the incident
as described by Complainant, while inappropriate, was not sufficiently
severe or pervasive to set forth a viable claim of harassment or reprisal.
Accordingly, the Agency’s decision 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
February 9, 2012
__________________
Date
2
0120114160
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114160