Lisa M. Hafer, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 3, 2000
01a01589 (E.E.O.C. Aug. 3, 2000)

01a01589

08-03-2000

Lisa M. Hafer, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Lisa M. Hafer v. United States Postal Service

01A01589

August 3, 2000

Lisa M. Hafer, )

Complainant, )

)

v. ) Appeal No. 01A01589

) Agency No. 4-F-920-0367-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) dismissing her complaint of unlawful employment

discrimination brought under Title VII of the Civil Rights Act of 1964,

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<1>

We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405). For the reasons set forth

below, we AFFIRM the FAD's dismissal of the complaint.

On August 11, 1999, complainant contacted the EEO office regarding

claims of harassment based on sex, national origin, age, and reprisal.

Informal efforts to resolve her concerns were unsuccessful. Accordingly,

on October 20, 1999, complainant filed a formal complaint, claiming that

she was subjected to discrimination and harassment when:

In June 1999, the Postmaster was not notified of her EEO settlement

agreement [dated December 3, 1998], or of the provision that she not

be supervised by a certain individual, the Co-worker whom complainant

named as named alleged harassing individual in her EEO complaint;

In June 1999, the Co-worker yelled at her at the time clock, saying:

�Don't worry, I don't want to see you, touch you, etc.�

In June 1999, a Supervisor threatened her with discipline concerning

her continuing conflict with Co-worker;

In September 1999, Supervisor asked her if she called Co-worker a

�loser,� when someone else had done so; and,

In September 1999, the Postmaster refused to conduct a meeting she

requested to address a purported hostile work environment.

In its FAD, the agency dismissed the complaint in its entirety for

failure to state a claim, finding that complainant was not harmed in a

term, condition, or privilege of employment as a consequence of any of

these claims. Furthermore, the FAD also found that complainant failed

to state a claim of harassment because she did not describe conditions

that were so severe or pervasive as to rise to the level of a hostile

working environment. Alternatively, the FAD found that claims 1, 2,

and 3, should also be dismissed for untimely EEO counselor contact,

and that there was no �continuing violation� between these claims, and

the September claims. Finally, the FAD also found that claim 3 should

be dismissed because it is a mere proposal to take an action.

On appeal, complainant contends that she attempted to contact the EEO

office in a timely manner, but because of various mistakes by the EEO

office, she was a few days late. She argues that the lateness should

be waived accordingly. Additionally, complainant contends that she

has suffered emotionally from the identified actions in her complaint,

especially because she feels that her settlement agreement has been

breached by the agency.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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). The Commission's

federal sector case precedent has long defined an "aggrieved employee"

as one who suffers a present harm or loss with respect to a term,

condition, or privilege of employment for which there is a remedy.

Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21,

1994).

After careful review, we concur with the agency's decision to dismiss

the complaint for failure to state a claim because none of the five

claims resulted in a harm or loss with respect to a term, condition or

privilege of employment. Specifically, the record shows that Co-worker

did not supervise complainant (claim 1). Moreover, the Commission notes

that the matter raised in claim 1 was previously raised by complainant in

the context of a breach of the settlement agreement of December 3, 1998.

Specifically, the record reflects that in correspondence dated June 21,

1999, and July 1, 1999, complainant alleged settlement breach, in essence,

addressing the same issue addressed in claim 1 of the instant complaint.

In a decision dated July 14, 1999, the agency found no settlement breach.

If complainant was dissatisfied with the agency's finding of no settlement

breach, the proper recourse is to file an appeal to the Commission, and

not to file a separate EEO complaint on this matter. 64 Fed. Reg. 37,644,

37,656 (1999) (to be codified as 29 C.F.R. � 1614.504(a)).

The record reflects that complainant received no disciplinary action

regarding her conflicts with Co-worker (claims 3 and 4).

Regarding claim 2, even in conjunction with all of these claims, we find

that the evidence is insufficient to support a claim of harassment due

to a hostile work environment. See Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997). Consequently, lacking a

demonstration of a hostile work environment, we also find that complainant

failed to show how she was harmed by claim 5.

In conclusion, we find that the agency properly dismissed the complaint

for failure to state a claim, and we AFFIRM the FAD.<2>

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:

August 3, 2000

____________________________

Date Carlton M. Hadden, Director

Office of Federal Operations

1On 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.

2Given this determination, we find that it is unnecessary to address

the FAD's alternative grounds for dismissal.