0120081148
03-25-2010
Delores A. Dunn,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120081148
Agency No. DAL-07-2176-SSA
DECISION
Complainant filed an appeal concerning her complaint of unlawful
employment discrimination following the agency's December 17, 2007 final
agency decision dismissing her complaint. 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. Complainant
alleged that she was subjected to harassment on the bases of race
(African American), age (over 40) and other (union representative) when:
1. On June 4, 2007, complainant was subjected to reprisal on two occasions
when on her way to the restroom she stopped and talked to co-workers,
at different times, and in both instances Operations Supervisor A stood
at the end of the aisle to infer that she move on.
2. On June 7, 2007, Operations Supervisor B, complainant's supervisor,
informed her that she may start following her to the restroom as the
result of a manager reporting the June 4, 2007, incident to her.
3. On June 22, 2007, Operations Supervisor C approached complainant while
she was talking to co-workers and questioned whether complainant was on
break or at lunch.
The Commission finds that the complaint fails to state a claim under
the EEOC regulations. Nothing in the record indicates that complainant
suffered any harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. There is no indication that
any of the identified management officials took any disciplinary action
against complainant as a result of the alleged incidents. Additionally,
the Commission does not find that complainant's claims are sufficiently
severe or pervasive so as to state a claim of harassment. Further,
we find that the agency's dismissal of "other (union representative)"
as a basis in this complaint was proper, as this basis is not within the
purview of the EEO statutes. Moreover, the Commission finds that where,
as here, a claim fails to render an individual aggrieved, it does not
convert into a cognizable claim because complainant requests compensatory
damages for physical or emotional injury. See Girard v .Department of
the Treasury, EEOC Request No. 05940379 (September 9, 1994).
Finally, we note the record reveals that on February 1, 2008, complainant
requested a hearing on the subject complaint before an EEOC Administrative
Judge (AJ). On February 26, 2008, the AJ dismissed complainant's
hearing request because the agency had already issued its December 17,
2007 final decision, at issue here, dismissing her complaint for failure
to state a claim.1
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
March 25, 2010
__________________
Date
1 Complainant's briefs dated February 15, 2008, and March 3, 2008,
were untimely filed and are not considered in the present decision.
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0120081148
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013