Dawn Merhalski, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 26, 2009
0120072582 (E.E.O.C. Feb. 26, 2009)

0120072582

02-26-2009

Dawn Merhalski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Dawn Merhalski,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120072582

Agency No. 4J-530-0139-03

DECISION

Complainant filed an appeal with this Commission from a final agency

decision dated February 26, 2004, dismissing her formal complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. The Commission accepts the appeal in accordance with 29

C.F.R. � 1614.405.1

On September 2, 2003, complainant contacted the EEO office regarding

claims of discrimination. Informal efforts to resolve complainant's

concerns were unsuccessful. Subsequently, complainant filed a formal

complaint alleging discriminatory harassment based on her disability.

The agency, in its decision, framed the claims as follows:

On July 29, 1999, complainant's vehicle was vandalized;

On September 7, 2000, complainant found correspondence in her bin;

and,

On July 28, 2003, complainant's timecard was missing from the

rack.

The agency dismissed the complaint on the grounds of untimely EEO

Counselor contact and on the alternative grounds of failure to state a

claim. Specifically, the agency dismissed the July 1999 and September

2000 claims as untimely filed with an EEO Counselor. The agency

reasoned that EEO posters were on display and therefore complainant had

constructive knowledge of the forty-five day time limitation. Without

specific analysis, the agency also found that complainant "failed to

describe any adverse employment action taken against [her]" and that,

therefore, the complaint failed to state a claim.

On appeal, complainant argues that her contact was not untimely because

the alleged harassment is ongoing. According to complainant, the most

recent event was on September 2, 2003, wherein she received mail at her

home that contained a resignation form. Complainant believes it was sent

by a harassing co-worker, and urges the agency to conduct handwriting

and fingerprinting analysis to prove she is correct.

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).

As noted above, the agency reasoned that complainant failed to present

an adverse employment action. However, we note that complainant has

alleged a claim of ongoing harassment.

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme

Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477

U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently

severe or pervasive to alter the conditions of the complainant's

employment. The Court explained that an "objectively hostile or abusive

work environment [is created when] a reasonable person would find [it]

hostile or abusive:" and the complainant subjectively perceives it

as such. Harris, supra at 21-22. Thus, not all claims of harassment

are actionable. 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 the complainant has been subjected was sufficiently severe or

pervasive to alter the conditions of the complainant's employment.

A complaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the complainant cannot prove a set of facts

in support of the claim which would entitle the complainant to relief.

The trier of fact must consider all of the alleged harassing incidents

and remarks, and considering them together in the light most favorable to

the complainant, determine whether they are sufficient to state a claim.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,

1997).

In this case, the Commission agrees that the complaint does not state

a claim of discriminatory harassment. Complainant claims that in July

1999 someone keyed her car, speculating that the damage occurred at work.

Over a year later, in September 2000, complainant contends she found

harassing correspondence in her bin.2 Approximately three years later,

complainant asserts that her timecard was missing. These events are

not sufficiently severe or pervasive to state a claim.3 Additionally,

we are not persuaded by complainant's assertion that the claims are

continuing in nature. The most recent event, cited by complainant on

appeal, concerns alleged harassment by a co-worker, while the other

alleged events were actions by her supervisors.

Accordingly, the agency's decision to dismiss the complaint was proper

and is hereby 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

February 26, 2009

__________________

Date

1 The agency argues that complainant's appeal should be dismissed as

untimely filed. The agency's final decision was issued on February 26,

2004, and it is unclear when the decision was received by complainant.

Commission records indicate that complainant submitted her appeal, via

fax, on March 27, 2004. Therefore, the agency has not established that

the instant appeal is untimely.

2 A copy of the document is included in the record, and is entitled "Myths

and Legends". Along with illustrations, are several captions including:

"Wolfman", "Tarzan", "Bigfoot" and "Happy Lesbian."

3 In light of our disposition, the Commission shall not consider whether

portions of the complainant were also appropriately dismissed on the

grounds of untimely EEO Counselor contact.

??

??

??

??

2

0120072582

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120072582