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.