0120091494
08-20-2009
Earnestine Coleman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Earnestine Coleman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091494
Agency No. 1H381001009
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 22, 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.
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.
In a complaint dated December 30, 2008, complainant alleged that she was
subjected to discrimination and harassment on the bases of color and
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when she was badgered when she was repeatedly assigned
different tasks in a short period of time; a manager refused her request
to call the Inspection Service and threatened to have her escorted out
of the building; her name was placed on the overtime list although she
was not on the sign-up sheet to work overtime; she was told to remain
gainfully employed at all times; she was asked why she had inquired about
the chain-of -command; her request to fill out a VOE survey in privacy was
denied; and mail addressed to the union room was opened before received
by complaint. In her appeal, complainant attaches numerous documents
related to the instant complaint, references and includes documents of
events that pre-date the complaint, and includes information related
to psychotherapy sessions.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that she suffered harm
or loss with respect to a term, condition, or privilege of employment for
which there is a remedy. Moreover, to the extent complainant is claiming
a discriminatory hostile work environment, we find that the events
described, even if proven to be true, would not indicate that complainant
has been subjected to harassment that was sufficiently severe or pervasive
to alter the conditions of her employment. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). Finally,
we find that complainant has not set forth a viable claim of reprisal.
Although complainant claims to have suffered damages as a result of the
incident at issue, the Commission has held that allegations that fail
to state a claim cannot be converted into a viable claim merely because
the complainant requests compensatory damages as a remedy. Ulanoff
v. United States Postal Service, EEOC Request No. 05950396 (January 26,
1996); Shrader v. Department of Agriculture, EEOC Appeal No. 01961499
(November 3, 1997).
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
August 20, 2009
__________________
Date
2
0120091494
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091494