0120160338
03-18-2016
Dania S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dania S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120160338
Agency No. 1E-841-0019-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 9, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Express Mail Technician at the Agency's Salt Lake General Mail Facility in Salt Lake, Utah.
On August 14, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and age (over 40) when:
1. On or about April 2nd and 3rd, 2015, a co-worker, who yelled and pointed her finger at Complainant, was assigned to work the express mail with Complainant; and
2. On unspecified dates, the pages with the PSE schedules for tour 2 PSEs, dating prior to April 2, 2015, were removed from the schedule book.
The Agency dismissed the complaint for failure to state a claim. The Agency noted that, because Complainant had not included the second claim in Complainant's formal complaint, the second claim was deemed waived.
Next, the Agency reasoned that "there is no persuasive evidence in the record that [Complainant] was subjected to any adverse employment action or denied any entitlement in relation to a term, condition, or privilege of employment as a result of the incidents [Complainant] raised in [her] complaint. The Agency also concluded that the "totality of the circumstances and the actions complained of, even if true, are neither sufficiently severe nor pervasive enough to create a discriminatory hostile or abusive working environment."
This appeal followed.
ANALYSIS AND FINDINGS
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, 1614.106(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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
In her complaint, she claims that a female coworker yelled at her and pointed a finger at Complainant. Complainant acknowledges that this was a one-time incident. The record includes Complainant's own statement that she was the one who twice approached the coworker with comments to which the coworker took exception. Two witnesses observed the occurrences. Neither of the two other witnesses found the coworker's remarks to be threatening or felt threatened by the coworker's remarks. By Complainant's own statement, she has demonstrated that the unpleasant interchange was due to her telling the coworker that the coworker could not work with her on a project and Complainant's negative view of the coworker, who she viewed as "only a temp."
Further, Complainant does not identify any personnel action that was taken against her, to Complainant's detriment. Instead, Complainant maintains that the Agency did not comply with its own "zero tolerance" policies and violated the "No Fear" Act when the supervisor assigned the coworker to the Express Mail schedule. It is clear that Complainant is raising a claim under the No Fear Act.
We find that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that was subjected to an adverse personnel action or suffered a 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).
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.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 18, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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