Diane McMahon, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (N.E./N.Y. Metro Area), Agency.

Equal Employment Opportunity CommissionFeb 8, 2000
0100290 (E.E.O.C. Feb. 8, 2000)

0100290

02-08-2000

Diane McMahon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (N.E./N.Y. Metro Area), Agency.


Diane McMahon v. United States Postal Service

0100290

February 8, 2000

Diane McMahon, )

Complainant, )

)

v. ) Appeal No. 0100290

) Agency No. 1B-021-0062-99

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(N.E./N.Y. Metro Area), )

Agency. )

)

DECISION

Based on a review of the record, we find that the agency properly

dismissed complainant's complaint, pursuant to EEOC Regulation

1614.107(a)(1), for failure to state a claim.<1> Complainant alleged

that she was subjected to discrimination on the bases of sex (female)

and age (12/14/47) when:

* On May 4, 1999, complainant was not allowed to use a bathroom outside

of her immediate area; and

* On May 5, 1999, a female supervisor followed complainant into the

bathroom and asked how long she was going to be there.

In determining whether a harassment complaint states a claim in cases

where a complainant had not alleged disparate treatment regarding a

specific term, condition, or privilege of employment, the Commission

has repeatedly examined whether a complainant's harassment allegations,

when considered together and assumed to be true, were sufficient to state

a hostile or abusive work environment claim. See Miller v. U.S. Postal

Service, EEOC Request No. 05941016 (June 2, 1995).

Consistent with the Commission's policy and practice of determining

whether a complainant's harassment allegations are sufficient to state a

hostile or abusive work environment claim, the Commission has repeatedly

found that allegations of a few isolated incidents of alleged harassment

usually are not sufficient to state a harassment claim. See Phillips

v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,

1996); Banks v. Health and Human Services, EEOC Request No. 05940481

(February 16, 1995). Moreover, 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 for the purposes of Title VII. See Backo v. U.S. Postal

Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal

Service, EEOC Request No.05940695 (February 9, 1995).

In determining whether an objectively hostile or abusive work environment

existed, the trier of fact should consider whether a reasonable

person in the complainant's circumstances would have found the alleged

behavior to be hostile or abusive. Even if harassing conduct produces

no tangible effects, such as psychological injury, a complainant may

assert a Title VII cause of action if the discriminatory conduct was

so severe or pervasive that it created a work environment abusive to

employees because of their race, gender, religion, or national origin.

Rideout v. Department of the Army, EEOC Request No. 01933866 (November 22,

1995) citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).

Also, the trier of fact must consider all of the circumstances, including

the following: the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee's

work performance. Harris, 510 U.S. at 23.

The agency's EEO Computerized Tracking System shows that complainant's has

not sought EEO counseling on any prior occasion, nor since the filing of

the instant complaint. EEOC Regulation 29 C.F.R. � 1614.107(a) 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;

� 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. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994). We do not find that the two incidents

cited meet the definition of an aggrieved employee. Accordingly, the

agency's final decision is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

Feb. 8, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to

all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as

amended, may also be found at the Commission's website at WWW.EEOC.GOV.