01a45979
12-21-2004
Marty A. Mia, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Marty A. Mia v. United States Postal Service
01A45979
December 21, 2004
.
Marty A. Mia,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A45979
Agency No. 4J-600-0135-04
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In a complaint dated July 27, 2004, complainant
alleged that she was subjected to discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
on the bases of race (African-American), color (Black), sex (female),
disability (on-the-job injury) and retaliation for prior EEO activity
when management allegedly continued to subject her to a hostile work
environment. Complainant alleged that on April 5, 2004 and ongoing:
(1) she attempted to cancel previously scheduled vacation time, but her
Supervisor (S1) insisted that she sign a PS Form 3971 to request annual
or sick leave; and (2) S1 attempted to force her into signing a leave
slip stating that she was late. Complainant also alleged 91 incidents
of harassment dating back to 1994.<1>
The agency's final decision (FAD) found that complainant indicated on her
complaint of discrimination that she called agency management to cancel
previously scheduled annual leave prior to the start of her work shift and
was told to talk to her union steward. Complainant indicated that she
was allowed to cancel her annual leave, and management was informed of
this, yet she was still required to sign a leave request form. The FAD
also noted that the 91 incidents of harassment alleged by complainant
in her formal complaint were previously decided by the agency, and thus
complainant appeared to be abusing the EEO process by stating allegations
which had already been decided.
The FAD found that complainant did not allege that she suffered any direct
or personal deprivation due to the alleged actions by S1, nor has she
identified any agency action taken in connection with the alleged action.
As such, the FAD found that complainant was not aggrieved since a term,
condition or privilege of her employment was not affected by S1's actions.
In addition, the FAD found that S1's actions were not sufficiently
severe or pervasive to create a hostile or abusive working environment.
The FAD also found that even if complainant's allegations were proven to
be true, they would not indicate that she had been subjected to harassment
which was sufficiently severe or pervasive to alter the conditions of
her employment. The FAD noted that while complainant alleged that the
mistreatment she received from management was poor and unprofessional,
she needed to show more than S1 was rude or lacked civility in the
workplace to establish discrimination under Title VII. As complainant
failed to describe an adverse action taken against her which affected a
term, condition or privilege of employment, her complaint was dismissed
for failure to state a claim under 29 C.F.R. � 1614.107(a)(1).
On appeal, complainant alleges that her allegations of discrimination
stated a claim as she has been aggrieved by S1. She alleges that due to
the agency's acts of harassment, she has experienced emotional problems,
loss of appetite and difficulty sleeping. Complainant alleged that she
was exposed to various acts of harassment in the workplace as well as
disparate treatment. The agency responded, stating that complainant
failed to show that she suffered any direct or personal deprivation
due to the actions of S1, nor did she identify any agency action taken
in connection with any alleged actions or comments made by S1 on April
5, 2004.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because 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 remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Accordingly, the agency's
final decision dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 21, 2004
__________________
Date
1 We note that in her statement on appeal,
complainant sought to raise a new claim for the first time. However,
a complainant may not properly raise claims on appeal to the Commission.
See Beard v. EPA, EEOC Appeal No. 01984770 (August 7, 2001).