0520120003
02-23-2012
Rudy Marinacci, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (New York Metro Area), Agency.
Rudy Marinacci,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(New York Metro Area),
Agency.
Request No. 0520120003
Appeal No. 0120100038
Agency No. 4A-110-0110-09
DENIAL
Complainant timely requested reconsideration of the decision in Rudy
Marinacci v. U.S. Postal Service, EEOC Appeal No. 0120100038 (August
18, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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.
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for
reconsideration by demonstrating that the appellate decision: (1)
involved a clearly erroneous interpretation of material fact or law;
or (2) will have a substantial impact on the policies, practices, or
operations of the Agency.
BACKGROUND
In the underlying case, Complainant contacted an EEO Counselor on April
30, 2009 and subsequently filed a formal complainant alleging that the
Agency discriminated against him on the bases of race (Caucasian), sex
(male), age (52), and reprisal for prior protected EEO activity when:
(1) on March 12, 2009, he was assigned to the East Elmhurst Post Office;
and (2) on March 31, 2009, he was subjected to public humiliation during
a DOIS Drill Down.
The appellate decision affirmed the Agency’s final decision dismissing
Complainant’s complaint. Specifically, the appellate decision dismissed
claim 1 pursuant to
29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact and
dismissed claim 2 pursuant to 29 C.F.R. § 1614.107(a)(1), for failure
to state a claim.
Regarding claim 1, the appellate decision determined that Complainant’s
April 30, 2009 EEO Counselor contact occurred more than 45 days after his
March 12, 2009 assignment. In addition, the appellate decision noted
that, because Complainant failed to notify the Agency in accordance
with 29 C.F.R. § 1614.504, it would not address the March 12, 2009
assignment’s alleged noncompliance with the terms of an EEO settlement
agreement.1
Regarding claim 2, the appellate decision determined that Complainant was
not subjected to an adverse action or denied any entitlement in relation
to a term, condition, or privilege of employment for which there is a
remedy. In addition, the appellate decision determined that the alleged
Agency action, even if assumed to be true, was not sufficient to state
a harassment claim. Finally, the appellate decision determined that the
alleged action was not reasonably likely to deter Complainant or others
from engaging in protected activity.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant contended that the
appellate decision erred in: (a) dismissing claim 1 for untimely EEO
Counselor contact; (b) concluding that he did not properly notify the
Agency of the alleged noncompliance; and (c) dismissing claim 2 for
failure to state a claim.
First, Complainant argued that his April 30, 2009 EEO Counselor contact
for claim 1 was timely because the alleged discrimination occurred on
April 9, 2009 – when the Agency assigned him to the Middle Village
Post Office. Second, Complainant argued that he properly notified the
Agency of its alleged noncompliance with the terms of the settlement
agreement because he reported the alleged noncompliance of the non-EEO
agreement to Human Resources. Third, Complainant argued that claim
2 stated a claim because the DOIS Drill Down damaged his professional
reputation and undermined his authority with co-workers and subordinates.
Complainant explained that a DOIS Drill Down is a conference at which a
branch manager is “called to task” by senior management to explain why
the branch is not performing according to standards. Complainant asserted
that the Agency failed to clarify to the DOIS Drill Down participants
and observers that the problems at the East Elmhurst branch were not
his fault.
The Agency did not submit a response to Complainant’s request for
reconsideration.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant’s request for reconsideration does
not establish that the appellate decision involved a clearly erroneous
interpretation of material fact or law, or that the appellate decision
will have a substantial impact on the policies, practices, or operations
of the Agency. Complainant failed to show that the appellate decision
clearly erred in dismissing his complaint.
Initially, we find that the appellate decision did not clearly err
in dismissing claim 1 for untimely EEO Counselor contact. Although
Complainant argued that the discrimination occurred on April 9, 2009,
the record reflects that he cited his March 12, 2009 assignment to
the East Elmhurst Post Office as the act of discrimination in his EEO
complaint. Specifically, Complainant wrote “3/12/09” as the date
on which the alleged act of discrimination took place. In addition,
when asked to explain the specific action or situation that resulted in
him alleging discrimination, Complainant wrote, “On March 12, 2009[,]
[I] was improperly assigned to East Elmhurst Post Office …” Further,
Complainant did not mention the April 9, 2009 date in his EEO complaint.
Next, we find that the appellate decision did not clearly err in
concluding that Complainant failed to notify the Agency of its alleged
noncompliance with the settlement agreement in accordance with 29
C.F.R. § 1614.504. The appellate decision determined that
29 C.F.R. § 1614.504 was applicable because Complainant, in his EEO
complaint, explicitly stated that the Agency’s actions “violated
an EEO settlement agreement.” In his request for reconsideration,
however, Complainant argued for the first time that 29 C.F.R. § 1614.504
did not apply because the settlement agreement was a non-EEO agreement.
Because such information was not available in the record when the
appellate decision was issued, we find that the appellate decision did
not clearly err. Moreover, we note that the Commission does not have
jurisdiction over an agency’s alleged noncompliance with a non-EEO
settlement agreement. See 29 C.F.R. § 1614.504.
Finally, we find that the appellate decision did not clearly err in
dismissing claim 2 for failure to state a claim. We agree with the
appellate decision that Complainant failed to demonstrate that the March
31, 2009 DOIS Drill Down resulted in a harm or loss with respect to a
term, condition, or privilege of his employment. Although Complainant
asserted that his professional reputation was harmed, we find that
the Agency’s alleged action did not have a concrete effect on his
employment status. The Commission has repeatedly found that remarks
or comments unaccompanied by a concrete agency action usually are not
a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv.,
EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S Postal Serv.,
EEOC Request No. 05940695 (Feb. 9, 1995). Here, there is no evidence
that Complainant was subjected to any disciplinary actions as a result of
senior management’s alleged verbal criticism at the DOIS Drill Down.
In addition, the Commission has repeatedly found that claims of a few
isolated incidents of alleged harassment usually are not sufficient to
state a harassment claim. See Phillips v. Dep’t of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human
Services, EEOC Request No. 05940481 (Feb. 16, 1995). Here, the record
reflects that the alleged harassment consisted of one isolated incident
on March 31, 2009.
We also agree with the appellate decision that the Agency’s alleged
action is not reasonably likely to deter protected EEO activity.
Although Complainant alleged that he was unfairly singled out for
the DOIS Drill Down because he had only managed the East Elmhurst
branch for a short period of time, the record reflects that managers
of under-performing branches are subjected to DOIS Drill Downs in the
regular course of business.
CONCLUSION
After reviewing the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to DENY
the request. The decision in EEOC Appeal No. 0120100038 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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.
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
__2/23/12________________
Date
1 The appellate decision noted that Complainant did not provide the
Commission with a copy of the relevant EEO settlement agreement.
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0520120003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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