01A62473
06-28-2006
Brandy Roberson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Brandy Roberson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A62473
Agency No. 4C450000706
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 10, 2006, 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.
The record discloses that the complainant was employed as a mail carrier at
the Ohio facility of the agency. In the formal compliant dated January 28,
2006, complainant alleges that she was subjected to discrimination on the
bases of race (African-American) and sex (female) when: (1) on October 7,
2005, the station manager threatened "to do everything in his power to fire
me;" and (2) on October 8, 2005, she was instructed to be the "custodian"
for the day and had to take out the trash, clean the bathroom, sweep and
mop the station lobby.
On November 22, 2005, complainant and the agency entered into a grievance
settlement, stating in pertinent part:
[T]he parties agree [complainant] shall be paid a lump sum of $72.60
for the incident on 10/8/05. In addition, management agrees to cease
and desist this type of behavior and comply with the Step 4 decision
dated 11/14/77 which states, "Local Management will make every effort
to reassign [complainant] to available light duty in [her] own craft
prior to scheduling light duty to another craft." Management further
agrees to treat the grievant with dignity, respect and fairness at all
time.
In its final decision, the agency dismissed the instant complaint pursuant
to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically,
the agency found that the complainant failed to show that she was subjected
to any adverse action or that she was denied any entitlement in relation to
a term, condition or privilege of employment as a result of the incidents
she alleges. Therefore, the agency found that the complainant was not
aggrieved within the definitions of the law.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to state
a claim. 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. Diaz v.
Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Moreover, the Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action are not a direct and personal
deprivation sufficient to render an individual aggrieved for the purposes
of Title VII. See Backo v. United States Postal Service, EEOC Request No.
05960227 (June 10, 1996); Henry v. United States Postal Service, EEOC
Request No. 05940695 (February 9, 1995). To the extent that complainant is
alleging that the remarks constituted harassment, the Commission notes that
unless the conduct is severe, a single incident or group of isolated
incidents will not be regarded as a claim of discriminatory harassment.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
In the instant case, the record reveals that, the complainant, who is a
mail carrier, was subjected to a one-day assignment of custodial duties
following an oral threat of her job by a station manager. There is no
evidence in the record that the complainant was subjected to any adverse
action or was denied any entitlement in relation to a term, condition or
privilege of employment, or was subjected to conduct of sufficient severity
to constitute a claim of unlawful harassment. Therefore, the Commission
finds that the complainant was not aggrieved within the definitions of the
law. Furthermore, to the extent that part of complainant's claim can be
read as a request for compensatory damages, we note that the Commission has
previously held that where an allegation fails to render an individual
aggrieved, it does not convert into a cognizable claim because the
complainant requests compensatory damages for physical and emotional
injury. See Girard v. Department of Treasury, EEOC Appeal No. 01940170
(September 9, 1994), req. to recon. den., EEOC Request No. 05940379
(September 9, 1994).
Accordingly, the agency's final decision dismissing complainant's complaint
for failure to state a claim is AFFIRMED.
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 (S0900)
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 (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
June 28, 2006
__________________
Date