0120092473
11-20-2009
Fabiola Dominguez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Fabiola Dominguez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120092473
Agency No. 56000001009
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 27, 2009, dismissing her formal 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.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 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.
Complainant is employed by the agency as a flat sorter clerk at its
processing and distribution center in Redlands, California. In a formal
complaint dated March 23, 2009, complainant claimed that she was subjected
to discrimination on the bases of race, sex, disability, and age.
On April 27, 2009, the agency issued the instant final decision. Therein,
the agency determined that complainant's formal complaint was comprised
of the following claim:
On December 12, 2008, complainant learned from her bank that the Office
of Inspector General (IG) had requested complainant's financial records
on June 20, 2008, and the financial records of a realty company owned
by complainant on November 7, 2008. Complainant alleges that these
requests were made in violation of the Right to Financial Privacy Act
and in order to harass her.
On April 27, 2009, the agency issued a final decision. Therein,
the agency dismissed complainant's formal complaint pursuant to 29 �
C.F.R. 1614.107(a)(1), for failure to state a claim.
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).
Complainant has not alleged a loss or harm regarding a term, condition,
or privilege of employment. The Commission has previously held that, in
many circumstances, being the subject of an Office of Inspector General
(IG) investigation, without more, does not render an employee aggrieved.
See Tucker v. Postmaster General, EEOC Request No. 01A15292 (January 18,
2002); Johnson v. Department of the Navy, EEOC Request No.05960699 (April
16, 1998). Under the circumstances alleged by complainant in this case,
we find the complaint fails to state a claim under the EEOC regulations
because complainant failed to allege that she suffered a harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. See Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). Complainant has not alleged that any
adverse employment action was taken as a result of the investigation or
that there is any sort of pattern of IG investigations targeting members
of her protected groups. Moreover, we note that complainant asserted
that the agency's actions violated the Right to Financial Privacy Act.
However, this is not a statute within the purview of the EEO complaint
process.
Finally, we note that in her formal complaint, complainant asserts that
she has been the victim of harassment noting, for example, a September
30, 2008 meeting for which she was provided no explanation for the
reason for the meeting, or the parties with whom she was going to meet.
The Commission determines, however, that the alleged claims, even if
proven to be true and viewed in a light most favorable to complainant,
would not indicate that complainant has been subjected to harassment
that was sufficiently severe or pervasive to alter the conditions
of employment. See Cobb v. Department of the Treasury, EEOC Request
no. 05970077 (March 13, 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
November 20, 2009______________
Date
2
0120092473
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092473
5
0120092473