0120112221
08-18-2011
Bonnie J. Hauger, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Bonnie J. Hauger,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120112221
Agency No. 4E800025410
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 4, 2011, dismissing her 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 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 Part Time Flexible Carrier at the Agency’s Mail Processing Annex
in Aurora, Colorado.
On January 12, 2011, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the bases of sex (female),
age (56), and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964. In its final decision, the Agency framed
the issues raised by Complainant as follows:
(1) on July 10, 2010 Complainant was notified that she was not
selected for a detail;
(2) on August 18, 2010 after an injury on duty, her manager told her
she needed to arrange transportation to the hospital herself; and
(3) on November 3, 2010, her manager said “Boy, Bonnie, I bet I know
what you are thinking, you really messed up this time! Oh, I meant to
say you really messed yourself up this time,” and gave her paper work
to complete.
The Agency dismissed claim 1 for untimely EEO counselor contact and
the remaining two claims for failure to state a claim. In her appeal,
Complainant said that she raised claim 1 only as background information
and explains that the complaint was filed due to the actions “on
08/18/2010 only” and the statements made that day.
The Commission notes that according to the Dispute Resolution
Specialist’s report, when Complainant was injured on August 18, 2010,
there was confusion about who would drive her to the hospital. Eventually
her immediate supervisor drove her to the hospital.
ANALYSIS AND FINDINGS
Given Complainant’s statement on appeal, we do not need to address
the Agency’s dismissal of claim 1 on timeliness grounds as Complainant
has expressly stated she was only raising it for background information.
With regard to allegations 2 and 3, we find no error in the Agency’s
determination that there is a failure to state a claim under the EEOC
regulations. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment to
which Complainant has allegedly been subjected was sufficiently severe
or pervasive to alter the conditions of Complainant’s employment. All
the alleged harassing incidents and remarks must be considered together
in the light most favorable to the complainant to determine whether they
are sufficient to state a claim. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997); Miller v. Department of the
Treasury, EEOC Request No. 05A10338 (August 15, 2002). In the instant
case, even considering allegations 2 and 3 together and assuming them
to be true, they appear to be isolated incidents of relatively minor
severity. With regard to the hospital incident, there is no dispute
that Complainant’s supervisor eventually drove her to the hospital.
Complainant failed to allege that she suffered harm or loss with respect
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).
Accordingly, 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
August 18, 2011
__________________
Date
2
0120112221
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112221