01a02194
05-16-2000
Kelly A. Turner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kelly A. Turner v. United States Postal Service
01A02194
May 16, 2000
Kelly A. Turner, )
Complainant, )
)
v. ) Appeal No. 01A02194
) Agency No. 1-I-671-0006-00
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's December 21, 1999 decision
dismissing the complaint on the grounds of failure to state a
claim, is proper pursuant to the provisions of 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.107(a)(1).<1>
The record shows that Complainant filed a formal complaint on November
26, 1999, wherein she claimed that she had been discriminated against on
August 23, 1999, when she was harassed and received a job discussion.
Complainant failed to raise any basis of discrimination for her
complaint and stated that "I do not feel that my situation is one that
specifically has to do with EEO situations". The record further shows
that by Notice of Final Interview dated November 15, 1999, the agency
advised Complainant that "if you file a formal EEO complaint, you must
cite a prohibitive discrimination factor".
The agency issued a final decision dismissing the complaint for failure
to state a claim, after finding that Complainant had failed to provide
a basis for her formal complaint.
On appeal, Complainant contends that "bullying and intimidation can be
deemed to be sex discrimination where it is generally or specifically
directed at the opposite gender".
A review of the complaint shows that Complainant claimed that on August
23, 1999:
(1) "she was repeatedly harassed throughout the day" by her supervisor;
(2) she was told by her supervisor that "she was not cutting it" and she
"was the worst mail processor he had ever seen"; and
(3) she received a formal job discussion.
It has been consistently held that a complainant may amend a complaint
at any time, prior to the issuance of a final agency decision, to add or
delete bases without changing the identity of the claim. See Sanchez
v. Standard Brands, Inc., 431 F. 2d 455, 462-466 (5th Cir. 1970).
The record shows that Complainant did not allege sex discrimination
prior to her appeal. However, as there is sufficient information in
the record to address the basis of sex discrimination, we will do so here.
A review of the complaint persuades the Commission that, when considered
together and treated as true, the alleged incidents which took place
on August 23, 1999, are not sufficient to state a claim, either of
disparate treatment or a hostile or abusive work environment. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). Moreover, we have held that a discussion, without more, does
not constitute an injury that makes Complaint aggrieved for purposes
of EEOC Regulations. See Manno v. United States Postal Service, EEOC
Appeal No. 01911672 (June 3, 1991). The Commission has also consistently
held that a remark or comment unaccompanied by any concrete effect does
not render the complainant aggrieved. Fuller v. USPS, EEOC Request
No. 05910324 (May 2, 1991).
Based on the foregoing, we find that Complainant has failed to show
that she suffered a harm to the terms, conditions, or privileges of
her employment. Accordingly, the dismissal of her complaint on the
grounds of failure to state a claim was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 16, 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 EQUAL EMPLOYMENT ASSISTANT
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.