0120091496
07-24-2009
Doris J. Cruz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Doris J. Cruz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091496
Agency No. 4A006011808
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated January 16, 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. 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 sex (female),
age (42) and reprisal for reporting an unsafe working environment when:
1. on June 19, 2008, August 9, 2008, August 19, 2008, and September 19,
2008, she was harassed,1 and
2. on September 19, 2008, she was placed in emergency off-duty status.
The FAD dismissed claim 1 for failure to state a claim and raising a
matter that was not brought to the attention of an EEO counselor and
is not like or related to a matter that was brought to the attention
of an EEO counselor. 29 C.F.R. � 1614.107(a)(1) & .(a)(2). The FAD
dismissed claim 2 for failure to state a claim. It reasoned that the
emergency off-duty status was rescinded per a grievance settlement
[dated November 18, 2008].
Except for the June 19, 2008, date, the dates in claim 1 correspond
with narrative in her complaint and accompanying documentation.2
Complainant contended that on June 19, 2008, her supervisor handed
her productivity standards for processing mail, told her she was not
meeting them, and raised matters of the timing of her break and lunch.
Complainant wrote that she was unaware of productivity standards in the
collective bargaining agreement (CBA). Complainant filed a grievance on
August 9, 2008, about having to work in an unsafe condition on August 7
and 8, 2008, i.e., excessive heat and humidity on the platform due to
lack of ventilation or a functional air-conditioner. She wrote this
affected others on the platform. Complainant contended that on August
19, 2008, she was required to work in an area where the custodians
were stripping the floor, which might contain hazardous material.
She contended that on the same day, her supervisor again told her about
productivity requirements. Complainant contended that the CBA does not
stipulate the amount of time clerks have to distribute mail.
The events of September 19, 2008, led to the emergency placement
in off-duty status. Complainant stated that she was told by her
supervisor twice that she had 25 minutes to finish sorting flats,
and when she replied each time that she would do what she could, the
supervisor got hostile and said she did not like complainant's attitude.
The supervisor had complainant go to an office, and expressed displeasure
with her wearing dark sunglasses. Complainant wrote that she replied her
eyes were sensitive to light, maybe because of medication. According to
complainant, when she told the supervisor she was not taken to the office
to discuss sunglasses, but to discuss flats, the supervisor replied
that complainant was acting with disrespect, and got more hostile.
The supervisor then left the office and returned and gave her a notice
of emergency placement in off-duty status.3 Complainant declined to
sign for its receipt, and asked for workers' compensation and light
duty forms. Not wanting to be left alone with the supervisor in the
office, complainant went to an employee lounge where she allegedly
had an anxiety/panic attack. Complainant wrote that nevertheless, the
supervisor, in front of others in the lounge, insisted to complainant
she had to leave. A co-worker called an ambulance, and complainant was
taken to the hospital.
On appeal, complainant writes that the settlement agreement was made by
the union and management, and she was not involved. She argues that as
a result of the harassment, she had pain and suffering, sought medical
attention, and missed time from work.
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. whether they are sufficient to state a claim. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
We find claim 1 does not rise to the level of actionable harassment.
The claim involves complainant's supervisor reminding complainant of
productivity standards a few times over a couple months, once discussing
the timing of her breaks, complainant performing duties for two days in
hot and humid conditions on a platform, along with everyone else working
there, her once working nearby a custodian who was stripping the floor,
and the dispute of September 19, 2008. These things of are insufficient
frequency and severity to rise to the level of actionable harassment.
On appeal, complainant appears to argue that she is aggrieved by virtue
of the fact that she suffered harm or loss for which she is entitled
to an award of compensatory damages and other relief. When, as in the
instant case, an allegation fails to render a complainant aggrieved,
it will not be converted into a processable claim merely because the
complainant has requested relief. Therefore, the Commission finds that the
relief requested by a complainant is irrelevant as to whether a complaint
states a processable claim. Larotonda v. United States Postal Service,
EEOC Appeal No. 01933846 (March 11, 1994).
The FAD's dismissal of claim 2 is supported by Commission precedent.
See Stevenson v. United States Postal Service, EEOC Appeal No. 01A52057
(April 27, 2005) (affirmed dismissal for failure to state a claim of
a complaint alleging discriminatory seven day suspension where via a
grievance settlement, the suspension was rescinded prior to the filing
of the formal complaint); Sowell v. United States Postal Service, EEOC
Appeal No. 01A45473 (November 24, 2004) (affirmed dismissal for failure
to state a claim of a complaint alleging discriminatory notice of medical
separation where via a grievance settlement, the notice was rescinded
prior to the filing of the formal complaint). Here, the emergency
placement in off-duty status was rescinded via grievance settlement
prior to complainant filing her complaint on December 31, 2008.
The FAD is affirmed.4
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 24, 2009
__________________
Date
1 The FAD defined claim 1 as occurring in August 2008. A review of the
complaint reveals complainant alleged the claim as characterized above.
2 Complainant provided no information in her complaint papers about
the June 19, 2008 event other than the date. On appeal, complainant
submitted grievance documentation about this date.
3 According to the counselor's report, the supervisor said complainant
became hostile and was argumentative and yelling.
4 As we are affirming the dismissal of claim 1 for failure to state a
claim, we need not address whether it raises a matter that has not been
brought to the attention of an EEO counselor and is not like or related
to a matter that has been brought to the attention of a counselor.
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0120091496
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091496