01A61913
06-09-2006
Carolyn Dennis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Carolyn Dennis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 01A61913
Agency No. 4J460016705
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 21, 2005, 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. In her
complaint, complainant alleged that she was subjected to race (Caucasian),
color (White), sex and age (DOB October 26, 1954) discrimination when she
became aware on September 1, 2005, that the Plant Manager (PM) stated that
if she spoke to Plant Support, he would kill her.
The agency dismissed complainant's claim for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the agency found
that complainant was not aggrieved with respect to a term, condition or
privilege of employment. The agency determined that the incident was
investigated and was determined to be not credible. PM denied making the
statement.
On appeal, complainant argues that the agency improperly examined the
merits of complainant's claims. Further complainant also argues that she
alleged in her complaint that she was subjected to a hostile work
environment and was retaliated against as a result of PM's statements.
Additionally, complainant argues that PM's threat, coupled with the
agency's inaction interfered with complainant's work environment. The
agency requests that we affirm the FAD. Preliminarily, we note that in her
pre-complaint counseling forms, dated September 22, 2005, complainant lists
retaliation as one of the bases of her complaint. However, in her formal
complaint, dated December 17, 2005, she does not list retaliation as a
basis of disparate treatment. Therefore, we decline to add as a basis that
complainant was retaliated against.
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
who believes that 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 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). With regard to complainant's claims of race, color, sex and age
discrimination, the Commission finds that complainant failed to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1) since complainant has failed
to demonstrate how she suffered a harm or loss with respect to a term,
condition or privilege of employment. 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. Backo v. United States Postal Serv., EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Serv., EEOC
Request No.05940695 (February 9, 1995). Although complainant argues that
the agency's inaction constituted concrete agency action, even assuming
that the incident occurred as complainant alleged, we find that this is not
sufficient to rise to the required level of a harm or loss with regard to a
term, condition or privilege of employment to articulate a claim of
disparate treatment. Therefore, the Commission affirms the agency's
dismissal of complainant's disparate treatment claims.
Similarly, assuming that complainant articulated claim of hostile work
environment, in determining whether a harassment complaint states a claim,
the Commission has repeatedly examined whether a complainant's harassment
claims, when considered together and assumed to be true, were sufficient to
state a hostile work environment claim. See Estate of Routson v. National
Aeronautics and Space Admin., EEOC Request No. 05970388 (February 26,
1999). In any case involving a claim of harassment, the incidents must be
judged by looking at all of the circumstances including the frequency of
the conduct; its severity, whether it is physically threatening or
humiliating, or a mere offensive uttering; and whether it unreasonably
interferes with an employee's work performance. Faragher v. Boca Raton,
524 U.S. 775, 787-788. The Commission finds that complainant failed to
state a claim of hostile work environment, pursuant to 29 C.F.R.
� 1614.107(a)(1) since the single incident, in this context, was not
sufficiently severe. Even assuming that the incident occurred as she
alleged, complainant's witness provided in her handwritten statement that
the PM was upset about a past incident where complainant passed information
to Plant Support. Given the context of the conversation, as indicated by
documents produced by complainant and her witness, we find that the record
does not support complainant's contentions that PM actually intended to
kill her if she spoke to Plant Support. While his comment may have been
unprofessional, it does not rise to the level of severity such that
complainant established a claim of hostile work environment. Furthermore,
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 Serv., EEOC Request No.
05940481 (February 16, 1995). Therefore, the Commission concludes that the
agency appropriately dismissed her claim. Moreover, we note that
complainant herself stated that "The threat was made so that I would not
talk about the information that [PM] wanted from me about job bidding,
(which I do for the Fort Wayne area) so he could use the information
against [Plant Support]." Complainant's E-mail to Ms. Feindt. As such,
complainant does not allege that the incident occurred as a result of PM's
animus toward her protected classes. Accordingly, the agency's final
decision dismissing complainant's complaint 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
_____6-9-06_____________
Date