Arlene C. Saitta, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 18, 2004
01A45219 (E.E.O.C. Nov. 18, 2004)

01A45219

11-18-2004

Arlene C. Saitta, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Arlene C. Saitta v. United States Postal Service

01A45219

11-18-04

.

Arlene C. Saitta,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A45219

Agency No. 1C-151-0038-04

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated May 27, 2004, dismissing her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. In her complaint,

complainant alleged that she was subjected to discrimination on the

basis of reprisal (prior EEO activity) when: (1) she was harassed by

her acting supervisor, on February 28, 2004, after he reminded her of

the rules for speaking with visitors; and (2) on May 1, 2004, when her

acting supervisor harassed her regarding her work performance.

The agency issued a final decision (FAD) dismissing complainant's

complaint on the grounds that she stated the same claim that was pending

before or had already been decided by the agency or the Commission in

accordance with 29 C.F.R. � 1614.107(a)(1). This appeal followed.

EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that the agency

shall dismiss a complaint that states the same claim that is pending

before or has been decided by the agency or the Commission.

Claim 1

According to the agency, the issues that were raised in the present

case are the same matters that were raised in informal complaint

no. 1C-151-0028-04. On February 27, 2004, complainant and the agency

entered into a settlement agreement that resolved the informal complaint.

The agreement provided, among other things, that "the employees will

inform visitors to respect the supervisor when requesting to speak

with other employees" and "according to postal service policy, both

[A-1,] Acting Supervisor and [complainant] agree to treat each other

with respect."

The next day, February 28, 2004, complainant stated that A-1 noticed her

speaking to a co-worker. When the co-worker left, A-1 called her to

his desk. According to complainant, A-1 was rude and unprofessional

to her. She also felt that he tried to embarrass her in front of

her co-workers. A-1 stated that, when he returned to his section, he

noticed that complainant had a visitor; therefore, he asked her to come

to his desk and reminded her of the settlement agreement.

In its FAD, the agency indicated that complainant initially maintained

that the agency had violated the terms of the settlement agreement.

After an investigation, the agency concluded that there had not been

a breach of the agreement; therefore, the agency concluded that claim

(1) should be dismissed on the grounds that it stated the same claim

as that raised in informal complaint no. 1C-151-0028-04. We disagree.

The proper grounds for dismissing claim (1) is that it fails to state a

claim under the EEOC regulations. Nothing in the record indicates that

complainant suffered any 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).

Complainant failed to explain how this incident rendered her aggrieved.

Remarks or comments, unaccompanied by any concrete agency action, are

not usually sufficient to render an employee "aggrieved" for purposes

of stating a valid employment discrimination claim. See Nelson

v. Department of Defense (Defense Contract Audit Agency), EEOC Appeal

No. 01A13907 (Sept. 25, 2001). Finally, to the extent that complainant

contends that this incident created a hostile work environment, we do not

find that this isolated event was sufficiently severe or pervasive enough

to state a claim of discriminatory harassment. See Cobb v. Department

of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

Consequently, we AFFIRM the dismissal of this claim.

Claim 2

On May 1, 2004, complainant told A-1 that she could not sweep mail and

showed him a doctor's note to that effect. According to complainant,

A-1 told her to case mail in the Mixed States Section. Complainant

maintained that other light duty employees, who could not sweep mail,

were not told to case mail and were allowed to go to the break area.

The agency also dismissed Claim (2) on the grounds that it stated the same

claim that was pending before or decided by the agency or the Commission.

The agency, however, did not provide any analysis in its FAD or evidence

in the record that would support a determination that this matter was

previously raised by complainant. Therefore, we find the dismissal of

Claim (2) was improper and is REVERSED.<1>

ORDER (E0900)

The agency is ordered to process Claim (2) in accordance with 29

C.F.R. � 1614.108. The agency shall acknowledge to the complainant that

it has received Claim (2) within thirty (30) calendar days of the date

this decision becomes final. The agency shall issue to complainant a

copy of the investigative file and also shall notify complainant of the

appropriate rights within one hundred fifty (150) calendar days of the

date this decision becomes final, unless the matter is otherwise resolved

prior to that time. If the complainant requests a final decision without

a hearing, the agency shall issue a final decision within sixty (60)

days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

____11-18-04______________

Date

1Unlike Claim (1), we find that Claim (2) does

state a claim. According to complainant, she was treated differently

than other limited duty employees because of her previous EEO activity.

If true, complainant would have suffered a harm or loss with respect to

a term, condition, or privilege of her employment.