Cynthia M. Newton, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 22, 2009
0120091595 (E.E.O.C. Jul. 22, 2009)

0120091595

07-22-2009

Cynthia M. Newton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Cynthia M. Newton,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091595

Agency No. 1E801000109

DECISION

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

decision dated January 27, 2009, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her complaint,

complainant alleged that she was subjected to discrimination on the

bases of race (Black), sex (female), disability (unspecified shoulder

disability), and age (54 years at time of Formal Complaint) when:

1. On September 22, 2008, complainant was accused of creating a hostile

work environment and was subsequently removed from her work area on

October 1, 2008 and moved to another location for five weeks.

The agency dismissed the claim for failure to state a claim, on

the grounds that complainant incurred no harm and that the actions

complained of were not so severe or pervasive as to create a hostile

work environment. Specifically, the agency found that complainant

suffered no monetary loss, she was not disciplined, and there were

no changes to the term and conditions of her employment. On appeal,

complainant reiterates the arguments she made before the agency.

Following a review of the record, the Commission finds that the complaint

fails to state a claim under the EEOC regulations because complainant

failed to show that she was subjected to unwelcome verbal or physical

conduct involving her protected classes, that the harassment complained of

was based on her statutorily protected classes, and that the harassment

had the purpose or effect of unreasonably interfering with her work

performance and/or creating an intimidating, hostile, or offensive

work environment. See McCleod v. Social Security Administration, EEOC

Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee,

682 F.2d 897 (11th Cir. 1982). Nor has she shown she suffered harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. See Diaz v. Department 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 (M1208)

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 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 (S0408)

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 (Z1008)

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

July 22, 2009

__________________

Date

2

0120091595

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0120091595