0120121209
05-24-2012
Michelle W. Denson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Michelle W. Denson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120121209
Agency No. 4G-320-0060-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 7, 2011, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
During the period at issue, Complainant worked as a Mail Processing Clerk at an Agency facility in Jacksonville, Florida. On November 17, 2011, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was the victim of unlawful employment discrimination on the bases of race, sex, and color when:
during the period of October 2010 - August 2011, she was harassed in that her attendance was monitored while she was on a Last Chance agreement (LCA) with continuous discussions about her attendance.
In an attachment to her formal complaint, Complainant asserted that she had been informed on several occasions that pursuant to the instruction of an Agency Labor Relations Specialist, all Complainant's gate rings, scheduled leave, and other attendance-related issues are being monitored.
On December 7, 2011, the Agency issued a final decision. Therein, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim stating that the actions complained of are neither sufficiently severe nor pervasive to create a discriminatory hostile or abusive working environment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. �1614.103. In order to establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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; �1614.106(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).
The instant formal 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. Moreover, we find that the claim, even if proven to be true and viewed in a light most favorable to Complainant, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Finally, the Commission notes that on appeal, Complainant argues that following the filing of the instant formal complaint, she has been issued a Notice of Removal for violation of the Last Chance Agreement. This matter, raised for the first time on appeal, will not be addressed herein. Complainant is advised to contact an Agency EEO Counselor if she wishes to pursue further this issue.
The Agency's final decision dismissing Complainant's formal complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 24, 2012
__________________
Date
2
0120121209
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121209