Kathy A. Meek, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 4, 2009
0120091157 (E.E.O.C. Jun. 4, 2009)

0120091157

06-04-2009

Kathy A. Meek, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Kathy A. Meek,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091157

Agency No. 4E-500-0050-08

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final decision dated December 18, 2008, dismissing her complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. Upon review, the Commission finds that complainant's

complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a).

In her formal complaint, complainant alleged that the agency subjected

her to hostile work environment harassment on the bases of disability

(Uterine Rectocele) and reprisal for prior protected EEO activity when a

Postmaster (1) disapproved her request for auxiliary assistance, chastised

her for completing an official agency form, called her "despicable"

to her face and in the presence of her coworkers, and told her that she

could not talk and (2) on July 16, August 6, and August 11, 2008, denied

her request for auxiliary assistance and accused her of delaying mail.

In its December 18, 2008 final decision, the agency dismissed

complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for

untimely EEO contact. The instant appeal from complainant followed.

On appeal, complainant stated that she made initial contact in a timely

manner and that the agency is confusing this claim with another matter

that she filed in September 2008. In opposition to complainant's appeal,

the agency acknowledged that her EEO contact was timely and stated,

however, that complainant's complaint should be dismissed pursuant to

29 C.F.R. � 1614.107(a)(1) for failure to state a claim.

Here, we find that the incidents alleged fail to state a claim under EEOC

regulations. 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 remedy1 or that the actions as alleged are sufficiently severe

or pervasive to alter the conditions of her employment. See Harris

v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Accordingly, we

AFFIRM the agency's final decision dismissing complainant's complaint.

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

June 4, 2009

__________________

Date

1 See Diaz v. Department of the Air Force, EEOC Request No. 05931049

(April 21, 1994).

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0120091157

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091157