01980451
11-13-1998
Martina Wills, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service Agency.
Martina Wills v. United States Postal Service
01980451
November 13, 1998
Martina Wills, )
Appellant, )
)
v. ) Appeal No. 01980451
) Agency No. 1-D-274-0003-97
William J. Henderson, )
Postmaster General, )
United States Postal Service )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was received by
appellant on September 17, 1997. The appeal was postmarked October 15,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant contacted an EEO counselor on June 27, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that she
was discriminated against when on June 10, 1997 her supervisor told her
not to take her breaks on the work room floor and he watched her work
until she left at the end of her tour. Informal efforts to resolve
appellant's concerns were unsuccessful. Accordingly, on August 15,
1997, appellant timely filed a formal complaint of discrimination on
the basis of reprisal (prior EEO contact).
On September 11, 1997, the agency issued its final decision dismissing
appellant's complaint for failure to state a claim. The FAD determined
appellant failed to demonstrate that she had suffered a personal loss
or harm with respect to a term, condition, or privilege of employment.
ANALYSIS AND FINDINGS
The agency found that appellant's complaint failed to comply with EEOC
Regulation 29 C.F.R. �1614.107(a) which states that the agency shall
dismiss a complaint that fails to state a claim under 29 C.F.R. �1614.103
or �1614.106(a). 29 C.F.R. �1614.103 provides that individual and class
complaints of employment discrimination and retaliation prohibited by
Title VII (discrimination on the bases of race, color, religion, sex,
reprisal and national origin) shall be processed in accordance with Part
1614 of the EEOC Regulations.
To establish standing as an "aggrieved employee" within the context
of 29 C.F.R. �1614.103, an appellant must allege, first of all, that
he has been injured in fact. In its final decision, the agency found
that appellant suffered no direct harm affecting a term, condition, or
privilege of employment as a result of the alleged discriminatory action
against her. The agency found further that since the alleged conduct
of appellant's supervisor did not result in any concrete action against
appellant, she was not aggrieved within the meaning of Part 1614.
The Commission agrees with the agency that appellant failed to demonstrate
that she was aggrieved and in turn, failed to establish a valid claim of
discrimination prohibited by Title VII. In the instant case, appellant's
allegations stem from an incident on June 10, 1997 at which time appellant
alleges that her supervisor discriminated against her when he told her not
to take her breaks on the work room floor and watched her at work until
she left at the end of her tour. The Commission finds that appellant's
harassment allegation regarding her supervisor's conduct fails to state
a claim pursuant to 29 C.F.R. �1614.103. See Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997). We find that one
isolated incident, such as the one at issue in the instant matter, is
not enough to rise to the level of harassment. Furthermore, the alleged
conduct of appellant's supervisor did not result in any concrete action
against appellant. As such, she was not aggrieved within the meaning
of Part 1614.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint for
failure to state a claim is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a
timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407.
All requests and arguments must bear proof of postmark and 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 filed on
the date it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations